Delhi District Court
Smt. Akhturun-Nisa vs Sh. Dev Raj Singh on 21 April, 2007
IN THE COURT OF SH. S.S. MALHOTRA : ADDL. RENT
CONTROLLER : KARKARDOOMA COURTS DELHI.
Suit No. E 323/06
In the matter of :-
1.Smt. Akhturun-Nisa
w/o. Late Sh. Maulana Syed Asrar Ul Haq.
2.Smt. Shahina Asrar
D/o. Late Sh. Maulana Syed Asrar Ul Haq.
3.Ms. Nilofar Asrar
D/o. Late Sh. Maulana Syed Asrar Ul Haq.
4.Ms. Mehtab Asrar
D/o. Late Sh. Maulana Syed Asrar Ul Haq.
All R/o. B-49, Joshi Colony,
Mandawali, Fazalpur,
Delhi-110 092 (I.P. Extn.)
..... Petitioners
versus
Sh. Dev Raj Singh
Shop no.2, Ground Floor,
Part of B-49, Joshi Colony,
Mandawali, Fazalpur,
I.P. Extn.,
Delhi-110 092
IInd Address:-
R/o. D-357, West Vinod Nagar,
Mandawali, Near Main Tage,
Technology Apartments,
Patparganj,
Delhi-110 092.
..... Respondent
Date of filing of petition:-8.5.2005 Date of Judgment:-21.4.2007
1. By this judgment I shall dispose of the petition of the petitioners under Section 14(1)(g) DRC Act for eviction of private shop no.2, ground floor, forming part of B-49, Joshi Colony, Mandawali, Fazalpur, I.P. Extn., Delhi-110 092, as shown in the site plan (hereinafter referred as tenanted shop) from the respondent.
2. Brief facts as stated by the petitioners are that the petitioners are the landlord / co-owner of the tenanted premises no. B-49, Joshi Colony, Mandawali, Fazalpur, I.P. Extn,, Delhi as earlier Late Sh. Maulana Syed Asrar Ul-Haq was the owner of the said premises but after the death of Sh. Maulana Syed Asrar Ul-Haq, all the petitioners have become the co-owner of the said property and the respondent is tenant with respect to one shop as shown red in site plan for non-residential purpose at the rate of Rs.715/- per month excluding electricity and water charges and he was running his business in the said premises and now he is misusing the said shop in violation and contravention of terms of tenancy. It is submitted that the tenanted shop is now in dilapidated condition and can fall of its own endangering human life and even the suit property has now become inhabitable. It is further submitted that the roof of the shop has also fallen on its own, although no casuality had happened. The shop therefore is required bona fide by the petitioners for the purpose of re-building, which cannot be carried out without the shop in question is vacated and handed over to the petitioners. It is further submitted that petitioners have time and again requested the respondent to vacate and hand over the said shop to the petitioners, to enable them to re-build the same, so that the same is made habitable, but the respondent has refused to do so, rather threatened the petitioners with dire consequences. It is further submitted that the respondent has put plastic sheets on the roof of the shop with a view to protect it from wet / possible collapse, during rainy season and subsequent sun- shine. It is further submitted that the said shop is standing without any support from three sides and therefore, there is every possibility of its collapse at any time. It is further submitted that the said shop is required immediately for re- building the same and if the same is not vacated / re- constructed, it may become dangerous for any one and therefore, it is prayed that an eviction order may kindly be passed in favour of the petitioners and against the respondent.
3. The respondent has filed written statement taking preliminary objections that the petition of the petitioners is not maintainable on various grounds interalia that the petitioners have not come to court with clean hands and they have concealed the material facts from the purview of the court. The petitioners are trying to get the advantage of their own wrongs and making the law as tool to dispossess the respondent from the tenanted premises in question illegally. The tenanted shop is only source of income of the respondent and his family members. He has been making the payment of rent regularly and petitioners have not served any legal notice upon the respondent before filing the present petition and the same is therefore liable to be dismissed.
On merits, the relationship, rate of rent, commencement of tenancy and the extent of accommodation
are not denied. But it is submitted that the petitioners are trying to mislead the court by concealing the material facts as it is specifically denied that the condition of the shop is dilapidated one or that it can fall at any time endangering human life and it is submitted that the condition of the shop is not so bad and the respondent is running his business smoothly but the petitioners with malafide intention is describing the condition of the shop very bad as they want to get the benefit of Section 14(1)(g) DRC Act and also to get the tenanted premises evicted from the respondent illegally and unlawfully. It is further submitted that they are depositing garbage on the three sides of the shop in question intentionally and deliberately. It is also denied that the adjoining shops had also been vacated by the tenants therein or they have handed over the possession of the same to the petitioners and infact the owner of the shop no.1 has also complained against the activity of the petitioners to the police. It is further denied that the roof of one of the said shop has fallen of its own and it is submitted that the petitioners have demolished the said shop as the petitioners want to raise multi stories shopping complex at the premises where the shop no.2 in question is situated. It is further submitted that the petitioners are not following the rules and regulations of the concerned authorities and the shopkeepers of the said shop are suffering and some are trying to approach before the court for the redressal of their problem. It is denied that the petitioners require the premises bona fide for the purpose of re-building, which cannot be carried out without shop in queston being vacated by the respondent as alleged. The service of legal notice is denied. It is also denied that the condition of the shop is dilapidated one or that the same has become dangerous or inhabitable as alleged and in these circumstances, it is prayed that the petition of the petitioners be dismissed.
4. Replication was filed by the petitioners in which the contents of the written statement are denied and reiterated and reaffirmed the contents of the petition as correct.
5. After the completion of the pleadings, parties were directed to lead their respective evidence.
6. Accordingly, the petitioners have examined Ms. Mehtab Asrar as PW1 and respondent has examined himself as RW1. No other witness has been examined by either of the party and they closed their respective evidence.
7. PW1 has deposed in terms of the petition by stating that she is the petitioner no.4 and she is representing other petitioners by way of General Power of Attorney which is Ex. PW1/1 and she is competent to represent other petitioners and also to file affidavit before the court. She has deposed in terms of the petition that she is one of the co-owner of the property.
She was cross examined by Ld counsel for respondent and in cross examination, she has deposed that she has given the details in the petition but her counsel had prepared this affidavit and she has signed the same at her house. She did not go to the seat of Oath Commissioner. She cannot say as to what is mentioned in para no.7. In para no.5 she submitted that her counsel has mentioned the details of the rent tendered by the respondent. She further stated that about 6-7 cases are pending in various courts of law regarding this property where the tenanted shop is situated. One local commissioner has been appointed in a Civil suit pending with respect to shop no.5 and he had furnished / filed the inspection report in the concerned court. Other cases are related to shop no.1, which is pending in the court of Sh. Vijay Shankar, Ld. Civil Judge. She further submitted the the cases with respect to shop no.8 & 9 are pending in the court of Ms. Kamini Lau, Ld. ARC. She denied the suggestion that shop is in dilapidated condition and it may fall of its own. She denied that the petitioners are trying to get the shop vacated on this account but in fact they have demolished the same. It is denied that the petitioners are not bona fide to get the tenanted shop vacated. She further deposed that she knows about the shop of the respondent through the polythene bag supplied by him. She has never verified the said matter of her own source. She denied that she refused to receive the rent when it was sent to her by money order by the respondent for the month of June to August, 05. She denied that no notice has been served to respondent through counsel or that petitioner are not liable for the eviction of the tenanted premises. She denied that she is deposing falsely.
8. The respondent has filed his evidence and deposed that he is in possession of the shop no.2, Ground floor, part of B-49, Joshi Colony, Mandawali, Fazalpur, I.P. Extn., Delhi and he is running his shop since long and the same is only the source of his income. It is further submitted that the structural condition of the shop in question is not dilapidated as alleged and it is submitted that the condition of the shop is satisfactory. He further deposed that in one another case titled as 'Nasiruddin Vs. Ms. Shahina Askar & ors' bearing suit no.266/04, one local commissioner was appointed and she has given the report which is Ex. DW1/1 which is as follows:-
"I found that the construction of the shop is old one but not in a dilapidated condition."
Respondent further deposed that he has not received any notice from the petitioners prior to filing of the petition and as such the petition of the petitioners is not maintainable.
He was cross examined and in cross examination he deposed that he is doing the work of dry cleaners under the name and style of Diamond Dry cleaners and has received clothes from customers for dry cleaning at his residence i.e D- 357, West Vinod Nagar, Delhi. He has no other shop except the present one. He is the owner of the above said residence. He further deposed that he gives back the clothes to the customers after dry cleaning them in a polythene on which the name, address and telephone number of the shop is mentioned and on the said polythene name of the three shops is also mentioned where he used to work on commission basis and now he has withdrawn himself from the said three shops. He further deposed that he never had any dispute with the landlords for the past 15 years and the relations were cordial with them. He further deposed that the electricity meter was installed in his name after obtaining no objection certificate from the landlords and he is paying he charges as per the consumption. He further deposed that he has paid the rent upto January, 07. He deposed that the landlords used to sign the rent receipts and used to give him and he did not used to sign the same. He further deposed that the shop is managed by his wife and he drycleans the clothes at his residence. He further deposed that he has never carried out any repair in the tenanted premises. But he put plastic sheets on the roof of the tenanted premises after the adjoining shops were demolished. He does not have any other source of income apart from the tenanted premises and he closed his evidence.
9. I have heard the arguments and perused the record.
10. Under Section 14(1)(g) of DRC Act, landlord is required to plead and prove the followings :
i. The landlord require the premises bona fide; ii. Such requirement is for the purpose of building or re-building or making substantial additions or alterations;
iii. Which cannot be carried out without the premises being vacated.
11. Section 14(8) of the DRC Act further provides that, no order for the recovery of 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 :
i) that the proposed reconstruction will not radically alter the purpose for which the premises were let or that such radical alteration is in public interest,
ii) that the plans and estimates of such reconstruction have been properly prepared; and iii. that necessary funds for the purpose are available with the landlord.
It is well settled that the word bonafide takes its colour from the context and its decision depends upon the facts and circumstances of each case. In Neta Ram vs. Jiwan Lal, AIR 1963 SC 499, the Hon'ble Supreme Court observed; " The Controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim by the landlord, and this can only be established by looking at all the surrounding circumstances such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however strongly, said to be entertained by him. The clause speaks not of the bona fide of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances". In Mehsin Bhai vs. Hale and Company 1964(2) MLJ 147, It was observed that the condition of the building may be relevant factor in regard to the bona fides of the landlord. It was further observed; "it is equally possible that the mere fact that the building is old, is taken advantage of by the landlord to put forward such pretext, his real object being ulterior and not bona fide for the purpose of reconstruction".
"No doubt, as to whether the landlords requirement is reasonable and bonafide has to be judged by the surrounding circumstances which will include his means for reconstruction of the building and other steps taken by him in that regard".
The principles laid down in Neta Ram's case were applied by the Hon'ble Supreme Court while interpreting a somewhat similar provision in S.14(1)(b) of the Tamil Nadu Act, 1960, Metalware & Co. vs. Bansilal Sharma AIR 1979 SC 1559. It was held that for determining the bona fide requirement of the landlord in such a case the Controller would have to take into account all the circumstances including the state or the condition of the building, the means of the landlord to undertake the project, steps taken by him in that regard and possibility or otherwise of its being put to a more profitable use after reconstruction. In Shyamlal Agarwal vs. Ratanlala Malviya AIR 1991 SC 353, while dealing with S 12(1)(h) of MP Act, 1961, the Hon'ble Supreme Court observed; "But even in the absence of such a provision dilapidated or otherwise, condition of the building would be one of the relevant circumstances while considering the bona fide need of the landlord under S.12(1)(h) of the Act, although that could not be a decisive circumstance in determining the question of bona fide need. Bona fide requirement of the landlord under S. 12(1)(h) may include many relevant factors, i.e. the need of the landlord to put the building for better use to obtain higher income, the condition of the building, shortage of accommodation and necessity of having larger accommodation, his financial resources etc. All these factors are relevant for the purpose of determining the question whether the accommodation is required bona fide by the landlord for the purpose of rebuilding the accommodation".
The crux is that, what is to be established is not the condition of the building but that the landlady/landlord bona fide and reasonably required the premises for the purposes of demolition and reconstruction.
12. In the present case, the petitioners have claimed that the condition of the premises is quite dilapidated. As per the law settled hereinabove, the condition whether the same is dilapidated or not has to be seen from the age of the building and other surrounding circumstances. Apart from that there is no evidence on record as to whether the petitioners have got the site plan sanctioned or that the petitioners have sufficient money to re-construct the same. The evidence of the petitioner is totally silent on this aspect. Section 14(8) is quite specific.
13. The clause although does not say specifically as to whether the sanctioned site plan has to be filed alongwith the petition or it may be filed subsequently but in Abdul Qadir and another v. Hamid Hussain, 29 (1986) DLT 107 it was held that the proposed site plan must be sanctioned and duly approved as this provides time to the landlord as to how much he would re-construct the shop and would comply the order of 20 DRC Act. These documents are more relevant in the present senerio where an action is being taken against the illegal construction. The petitioner in the entire evidence has not stated at all as to whether she has got approved site plan or not. No doubt, the said site plan can also be filed at the stage of execution and it has been held by the Hon'ble Supreme Court in Harrington House School v. S.M. Ispahani and another, JT 2002 (4) SC 639 that "A procedure can be devised to protect the interest of both - the tenant and the landlord. It was directed that the landlord shall submit the plans for reconstruction for the approval of the local authority. Only on the plans being sanctioned by the local authority, the decree for eviction shall be available for execution and such sanctioned or approved plan be produced before the executing court.
Meaning thereby that the site plan can be filed before the executing court. The petitioner in the present case has not examined any architect's report with respect to the dilapidated condition of the premises. Admittedly, she is not an expert who can determine the condition of the premises. The petitioner has claimed that the premises is in dilapidated condition and the respondent claimed that it is not in dilapidated condition. The onus to prove the same is upon the petitioner. But the petitioner has failed to prove the same. Therefore, the court is of the opinion that petitioner has failed to prove that the tenanted premises require re-construction. Accordingly, the petition of the petitioner u/s 14(1)(g) DRC Act is dismissed. No order as to cost. File be consigned to Record room.
(S. S. MALHOTRA) ADDL. RENT CONTROLLER KKD COURTS, DELHI.
ANNOUNCED IN OPEN COURT ON 21.4.07