Delhi District Court
Smt. Kamini Sharma vs Dr. Chaman Lal Mittal on 3 April, 2019
In the Court of CCJ cum ARC, (Central District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Susheel Bala Dagar
Case No. E745/17
CIS No.860/17
In the matter of :
Smt. Kamini Sharma
W/o Late Shri Krishan Kumar Sharma
R/o H. No. 6153, Block1,
Street No. 5, Dev Nagar,
Karol Bagh, New Delhi110005. ...........Petitioner
Versus
Dr. Chaman Lal Mittal
S/o Not known
Clinic At 6153, Block1
Dev Nagar, Karol Bagh,
New Delhi110005. ........Respondent
Date of institution : 25.09.2017
Date of reserved for judgment : 01.04.2019
Date of judgment : 03.04.2019
Decision : Petition allowed
JUDGMENT :
1. An eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises, i.e., two shops at ground floor measuring about 225 sq. ft. (approx.) at 6153, Block 1, Dev Nagar, Karol Bagh, New Delhi as shown in red in the site plan annexed with the petition on the ground of bonafide requirement under Section 14 (1) (e) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').
2. The case of the petitioner is that the premises bearing no. 6153, Block 1, Street No. 5, Dev Nagar, Karol Bagh, New Delhi110005 was CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 1 of 20 owned by Late Shri Hirdey Ram Sharma, the grandfather of the husband of the petitioner and after his death, the abovesaid property was owned by the father in law of the petitioner Shri Om Prakash Sharma. The said property came into the share of the husband of the petitioner late Shri K.K. Sharma in a family settlement deed executed by all the members of the family. Shri K.K. Sharma, Advocate - the husband of the petitioner died intestate on 22.01.2011 and after his death, the abovesaid property has been mutated in the name of the petitioner, as other legal heirs of Shri K.K. Sharma i.e. two sons namely Abhishek Sharma and Mayank Sharma, relinquished their rights in the abovesaid property in favour of the petitioner and at the moment the petitioner is the lawful owner, landlady of the abovesaid property.
3. The entire property consists of one ground floor and two floors, whereas, the first and second floor of the suit property are being used for the purposes of residence of the petitioner and her sons with their families and the ground floor is given on rent to various tenants. The tenanted premises was let out to the respondent for running a clinic by the grandfather of husband of the petitioner around 50 years ago and the respondent is running his clinic in the tenanted premises till date.
4. The petitioner has two sons, namely Shri Abhishek Sharma and Shri Mayank Sharma and both of sons of the petitioner are Advocates and are practicing in legal profession in the name and style of Pulastya Legal Services LLP. The sons of the petitioner are having their offices at Bangalore, Mumbai and Delhi. The elder son of the petitioner, namely, Sh. Abhishek Sharma is mainly confined to Bangalore and the younger CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 2 of 20 son Sh. Mayank Sharma is confined to Delhi and Mumbai. The sons of the petitioner are running their office in the tenanted premises at #102, First Floor, 9/2, East Patel Nagar, New Delhi110008 and paying a monthly rent of Rs. 26,000/ as the petitioner has no suitable accommodation to accommodate her sons so that they would run their office and thus, the petitioner requires the tenanted premises bonafidely in order to settle her sons where they can run their office and have not to pay the heavy rent of Rs. 26,000/ per month.
On the above stated grounds, prayer is made for eviction of the respondent from the tenanted premises.
5. Summons were served upon the respondent, who appeared and filed leave to defend application, which was allowed vide order dated 13.08.2018 and the respondent was granted leave to contest the present eviction petition. Thereafter, written statement was filed by the respondent denying the contentions made by the petitioner in the eviction petition stating that the premises have been let out by the predecessor of the petitioner for running of a doctor's clinic which is not a residential purpose. The respondent submits that in terms of the provisions of Section 14(1)(e) of the DRC Act, the petition is not maintainable. The respondent submits that the area in question is a notified slum area. The requirement to obtain permission under the Slum Areas (Improvement and Clearance) Act 1956 is a mandatory requirement and cannot be dispensed with. Thus, the present petition is not liable to be entertained without the permission having been obtained under the Slum Areas Act. The petitioner had made contradictory pleas. She had herself stated that CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 3 of 20 she alongwith her sons and their families are residing at first and second floor of the property but in reply to leave to defend application, the petitioner admitted that her younger son, Mayank Sharma is living at Kirti Nagar and her other son is residing in Bangalore. Further, the petitioner also admitted that one Mr. Rajesh Kanwar Chettari, is under occupation and in possession of the second floor of the property.
6. The petitioner during the contemporaneous period has let out the three shops on the ground floor and one shop on the mezzanine floor to various persons. One shop to the right of the respondent's shop is rented out to a tenant, namely Mr. Rajesh Kanwar Chettri who is operating and running his business under the name and style of "New Chinese Cottage"
from last 3 years. The very same tenant occupies a portion on the second floor of the said premises, which is stated by the petitioner to be currently used by her children. The said shop is shown in Pink colour in the site plan. One shop to the right of the respondent's shop is rented out to a tenant, namely Mr. Dharamvir who is operating and running his garment business under the name and style of "DTR Jeans" from last one year. The said shop was earlier with the respondent. Thereafter petitioner's husband made a request that shop is required for self use. The respondent had straight away vacated the said shop but the said shop instead of being put to selfuse was further rented out. The said shop is shown in blue colour in the site plan. One shop to the extreme right of the respondent's shop is rented out to a tenant, namely Mr. Rajesh who is operating and running his business under the name and style of "Uttrakhand Paan Corner" from last one year. The said shop is shown in orange colour in CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 4 of 20 the site plan. The mezzanine floor is currently under occupation of the tenant, namely Mr. Manish who was inducted in the year 2015. The same is shown in purple colour in the site plan.
7. It is further submitted that the petitioner has also concealed that the mezzanine floor shown in the purple colour was being used by the husband of the petitioner, namely late Mr. Krishan Kumar Sharma as office till the year 2010, when he passed away and the very same office thereon was run by the sons of the petitioner till the year 2015, when Mr. Manish was inducted as a tenant in the year 2015. The petitioner is residing alongwith her son Mayank Sharma at property bearing no. D30, Kirti Nagar, New Delhi110015. The premises on the first floor are lying vacant from the year 2015. The second floor of the premises have been let out to one Shri Rajesh Kanwar Chhetari who is in possession, occupation and enjoyment of the same. From the perusal of the lease deed of premises bearing no. 102, 1st Floor of property no. 9/2, East Patel Nagar, New Delhi110008, it is seen that the premises mentioned in the said lease deed is the third floor and not the first floor. The lease deed is dated 01.02.2016 and the same is for a period of 11 months. The said lease deed expired in January 2017. No lease deed subsequent to the said date has been placed on record. The need / requirement which is portrayed by the petitioner is sham, fanciful and/ or whimsical desire. The elder son of the petitioner, namely Abhishek Sharma is mainly confined to Banglore and the younger son, namely Mayank Sharma is confined to Delhi and Mumbai. Apart from the aforementioned places, her sons also have an office at Jabalpur. The petitioner's sons had relinquished their shares in CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 5 of 20 favour of the petitioner out of their own free will. Therefore, now to say that the premises is required for their bonafide need is untenable and highly mischievous on the petitioner's part. It is submitted that the person who operates from a commercial and well equipped space in East Patel Nagar, wanting to move to a farther distance from his place of residence i.e. Kirti Nagar to a congested and unplanned area to conduct and / or run his professional law firm, who has mainly practice in Intellectual Property Rights in doubtful. Even today, first floor in the premises is lying vacant and unutilized, which satisfies all parameters to qualify as alternate and suitable accommodation.
8. Replication to the written statement of the respondent was filed by the petitioner, wherein the petitioner has denied all the averments made by the respondent in his written statement, reaverring what was averred by her in the original eviction petition. It is submitted by the petitioner that it is reiterated that the first floor of the premises is being used by the petitioner for his residence. Earlier her sons were also residing with her on the first floor. Thereafter, the elder son had shifted to Bangalore where he is running his office in the name and style of Pulastya Legal Service LLP and the younger son had shifted to Kirti Nagar in a rented accommodation. The petitioner resides on the first floor and keep visiting to Banglore as well as Kirti Nagar, Delhi as and when she feels like doing so but she has her independent residence on the first floor of the suit property. The second floor of the suit property in dilapidated condition and is not fit for the sons of the petitioner to run their office at second floor and more so the second floor is also a residential accommodation CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 6 of 20 and not fit for office of the sons of the petitioner. Mr. Rajesh Kumar who was a care taker and was allowed to reside in one room on the second floor had already vacated and has left the premises and the services of the petitioner during the pendency of the present petition.
9. It is denied that the petitioner has not disclosed regarding the three shops on the ground floor and one mezzanine floor given on rent as alleged. All these tenancies are old tenancies and were created prior to the year 2014 as those shops are small in size and are not suitable for the purposes of running the office of law firm. The shop which has been alleged to be run as New Chinese Cottage is in fact a garage to park a two wheeler of the petitioner and after the death of the husband of the petitioner,there was no requirement of two wheeler and therefore, the said garage had been given on licence to one Mr. Rajesh Kanwar Chhetri alias Rajey, who was also the care taker of the property of the petitioner and was being permitted by the petitioner to stay on the second floor of the property. He has now vacated and has left the premises and the services of the petitioner during the pendency of the present petition. It is submitted that the premises in the occupation of Mr. Dharamveer is very small measuring about 3'x8' (approx.). It is vehemently denied that the said shop was with the respondent and had been given to the husband of the respondent as alleged. The said small premises was lying vacant and was of no use of the petitioner being very small in size, had been given on rent to Shri Dharamveer in the year 2014.
10. It is vehemently denied that the premises is under the tenancy of Mr. Rajesh where he is running a Pan Corner is a shop. It is submitted to CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 7 of 20 be a side almirah which was previously given on rent to the uncle of Mr. Rajesh Mr. Ram Kishan about 4045 years back and was run by his brother and Mr. Rajesh's father - Shri Purshottam Nautiyal and now is being run by Mr. Rajesh. It is vehemently denied that Mr. Manish was inducted tenant in the year 2015. Earlier Mr. Manish was running his shop which is currently under occupation of Mr. Dharamveer and in the year 2014, the room on the mezzanine floor which was lying vacant and useless for the purposes of the petitioner was given to Mr. Manish who had vacated the small space on the ground floor.
11. It is admitted that the room on the mezzanine floor was being run as an office by late Mr. Krishan Kumar Sharma, advocate and after his death, the younger son of the petitioner started his office in the said premises but the said premises was not suitable for the office of the sons of the petitioner and therefore, they had to take a premises on rent. The petitioner does not want to be dependent upon her sons and therefore, decided to stay on the first floor of the said property, as per her will and desire. The petitioner keeps on going to Kirti Nagar or to Banglore to stay with her sons respectively, but she is permanently residing at the suit property. It is vehemently denied that the premises on first floor is lying vacant since 2015, as alleged. It is vehemently denied that the premises taken on rent is on the third floor. The sons of the petitioner are on the first floor as tenant. The allegations of the respondent regarding unsuitability of the premises are totally vague and misconceived.
12. It is submitted that the tenanted premises is being used for commercial purpose and the same is also suitable to the needs of the sons CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 8 of 20 of the petitioner. If any premises would have been suitable for running of the office of the sons of the petitioner in the said property of the petitioner, the sons of the petitioner would have not taken on heavy rent other premises for their office. It is admitted that the two shops had been sold by the father in law of the petitioner in the year 1994 when the father in law of the petitioner used to be the owner of the said property.
13. During evidence, petitioner Kamini Sharma stepped into the witness box as PW1 and deposed on the lines of the eviction petition.
Further, she relied upon the following documents :
a) Site plan : Ex. PW1/1
b) Copy of mutation from DDA in favour of petitioner : Ex. PW1/2 is deexhibited and Mark X
c) Conter foils of rent receipts : Ex. PW1/3 (colly.)
d) Copy of rent deed between son of the petitioner and Harish Kumar : Ex. PW1/4 is deexhibited and Mark Y. The petitioner has also examined her son Shri Mayank Sharma as PW2, who reiterated the version of PW1 In his turn, the respondent has examined himself as RW1 and deposed on the lines of his written statement. Further, he relied upon the following documents : a) Site plan : Ex. RW1/1
b) photographs of the suit property : Ex. RW1/2 (Colly.) c) Compact Disc : Ex. RW1/3 After cross examination, respondent evidence was closed.
14. I have heard the contentions of both the parties and have gone through the record. Ld. Counsel for respondent has relied upon the following case laws in support of his arguments Precision Steel & Engineering Works v. Prem Deva Niranjan Deva Tayal (1982) 3 SCC 270, Santosh Devi Soni v. Chand Kiran Civil Appeal no. 412 of 2000 CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 9 of 20 decided on 17.01.2000, Deepak Gupta v. Sushma Aggarwal (2013) 202 DLT 121, Kishore v. Prabodh Kumar 2012(132) DRJ 562S.p. Chengal Varaya Naidu (dead) by LRs. v. Jagannath (dead) by LRs (1994) 1 SCC
1. Essential ingredients of Section 14(1)(e) of DRC Act, 1958. i. Petitioner is the landlord and owner in respect of the tenanted premises;
ii. She requires the premises bonafidely for herself or for family members dependent upon her;
iii. She has no other reasonable suitable accommodation. Ownership as well as existence of landlordtenant relationship :
15. In the present case, the respondent has not dispute the ownership of the petitioner as well as existence of landlord tenant relationship between the parties. However, it is submitted that one of the shop was let out to RW1 in the year 1958 and another shop in the year 1966. The said shops under his occupation are given on pagri for an amount of Rs. 6000/ and it was mutually agreed by the predecessor of the petitioner that respondent would continue to enjoy the premises and not pay rental in respect of the same. On the other hand, PW1 has stated that the suit property was owned by late Shri Hirdya Ram Sharma, the grand father of husband of PW1. After his death the suit property was owned by the father in law namely Shri Om Prakash Sharma. The said property came into the share of husband of the petitioner late Shri K.K. Sharma in a family settlement deed executed by all the members of the family. After death of her husband the above said property has been mutated in the name of the petitioner as the other legal heirs i.e. her two sons namely CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 10 of 20 Abhishek Sharma and Mayank Sharma relinquished their rights in favour of the petitioner. Hence, it is submitted that she is the owner and landlady and the respondent is admittedly the tenant paying rent to her. The petitioner has relied upon the counterfoils of the rent receipt Ex. PW1/3 and copy of mutation from DDA in favour of the petitioner as Ex. PW 1/2.
16. The respondent has not been able to produce any document showing payment of any pagri amount. Moreover, in case of Satish Jain v. Tara Devi in RC. REV. No. 595/2012 decided on 05.11.2014, it has been held by the Hon'ble Delhi High Court that payment of pagree does not vests any right in the tenant. Section 13 of the Act provides that if a landlord has illegally received any monies in the form of premium, then within one year of making the payment, the tenant can seek recovery of the same and not thereafter. Admittedly, in the present case, period of one year stands expired long back as the tenancy commenced on 03.08.1992. In any case, even for sake of arguments, we presume that pagree/premium was paid, nowhere does the law provides that after payment of such an amount, the tenant cannot be evicted from the suit premises, if there is found a bonafide need for the tenanted premises. Hence, this ground raised by the respondent is also rejected.
17. Hence, the ownership of the petitioner over the premises in question for the purpose of the DRC Act as well as existence of landlord tenant relationship between the parties stands duly proved. Bonafide requirement CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 11 of 20
18. The PW1 has two sons, namely Shri Abhishek Sharma and Shri Mayank Sharma and both sons of the PW1 are advocates and are practicing in legal profession in the name and style of Pulastya Legal Services LLP. The sons of the PW1 are having their offices at Bangalore, Mumbai and Delhi. The elder son of the PW1 namely Shri Abhishek Sharma is mainly confined to Bangalore and Mumbai. The sons of the PW1 are running their office in a tenanted premises at #102, First Flor, 9/2, East Patel Nagar, New Delhi 110008 and paying a monthly rent of Rs. 26,000/ as PW1 had no suitable accommodation to accommodate her sons so that they could not run their office. Initially, the rent agreement was for 11 months but the same is continuing with the consent of both the parties with increase rent @ 10% every year. The sons of the PW1 are dependent upon the PW1 for the purposes of running their offices and earning their livelihood. Both the sons of the PW1 are married and have their families. It is the utmost duty of the PW1 to settle her sons after the death of her husband. The tenanted premises is most suitable for the office of the sons of the PW1.
19. Per contra, it submitted by the respondent that the petitioner has made contradictory pleas. She has herself stated that she alongwith her sons and their families are residing at first and second floor of the property but in reply to leave to defend application, the petitioner admitted that her younger son, Mayank Sharma is living at Kirti Nagar on rent and her other son is residing in Bangalore. Further, the petitioner also admitted that one Mr. Rajesh Kanwar Chettari, is under occupation and in possession of the second floor of the property. The petitioner is residing CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 12 of 20 alongwith with her son Mayank Sharma at property bearing no. D30, Kirti Nagar, New Delhi110015. From the perusal of the lease deed of premises bearing no. 102, 1st Floor of property no. 9/2, East Patel Nagar, New Delhi110008, it is seen that the premises mentioned in the said lease deed is the third floor and not the first floor. The lease deed is dated 01.02.2016 and the same is for a period of 11 months. The said lease deed expired in January 2017. No lease deed subsequent to the said date has been placed on record. The need / requirement which is portrayed by the petitioner is sham, fanciful and/ or whimsical desire. The elder son of the petitioner, namely Abhishek Sharma is mainly confined to Banglore and the younger son, namely Mayank Sharma is confined to Delhi and Mumbai. Apart from the aforementioned places, her sons also have an office at Jabalpur. The petitioner's sons had relinquished their shares in favour of the petitioner out of their own free will. Therefore, now to say that the premises is required for their bonafide need is untenable and highly mischievous on the petitioner's part. It is submitted that the person who operate from a commercial and well equipped space in East Patel Nagar, wanting to move to a farther distance from his place of residence i.e. Kirti Nagar to a congested and unplanned area to conduct and / or run his professional law firm, who has mainly practice in Intellectual Property Rights in doubtful.
20. During crossexamination, PW1 has stated that her younger son Shri Mayank Sharma is residing in Kirti Nagar on rent as he got married and wanted to reside separately from his family. She admitted that her sons are running law firm Pulastya Legal Services LLP independently in CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 13 of 20 Delhi, Mumbai, Bangalore and Jabalpur. She also admitted that her sons are running their house and their offices independently from their own income. She stated that she stays with her sons as per her desires. She stated that her medical expenses, travel expenses are borne by her as well as her sons. PW2 admitted that he and his brother relinquished their right in the suit property in favour of their mother by executing the relinquishment deed. He also admitted that his mother is not residing with him permanently at his present address i.e. C60, Third Floor, Kirti Nagar, Delhi.
21. It is the contention of the respondent that the sons of the petitioner are not dependent upon her as they are earning independently. However, dependency for the purpose of DRC Act is not limited to financial dependency alone. It also includes dependency for accommodation purpose. The respondent has further alleged that the sons of the petitioner are having their office on rent in East Patel Nagar area. It is not the case of the respondent that the sons of petitioner are having their own office in their own property anywhere else in Delhi. In G.K. Devi v. Ghanshyam Das, AIR 2000 SC 656, Dhannalal v. Kalawati AIR 2002 SC 2572, Dinesh Kumar v. Yusuf Ali AIR 2010 SC 2679, Krishna Kumar Rastogi v. Sumitra Devi AIR 2014 SC 3635 it has been held that a tenanted commercial accommodation available to the landlord is no ground to dismiss the case initiated by him for eviction of the tenant from his own accommodation on the ground of bonafide need. Once, the petitioner is having property on the ground floor in her own name, she cannot be CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 14 of 20 forced to accommodate the respondent when her own son is doing work / having office in a rented accommodation. Hence, the sons of the petitioner, cannot be denied of their right to establish their own office to earn their livelihood from the accommodation which is available with the petitioner. In Joginder Pal v. Naval Kishore Behl, 2002 (1) RCR Rent 583 (SC) it has been held that the landlord is entitled to evict tenant from non residential premises for use of his family member or a person who is dependent on landlord or on whom the landlord is dependent It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent. Moreover, in Sarla Ahuja v. United India Insurance Company Ltd. (1998) 8 SCC 119 it has been held that Rent Controller shall not proceed on the presumption that the requirement of the landlord is not bona fide and that when the landlord shows Prima facie case, a presumption that the requirement is bona fide is to be drawn. The petitioner cannot be made suffer just because the erstwhile owner decided to let out the suit shop to the respondent at one point of time. Thus, the bonafide requirement of the petitioner qua the tenanted premises for her sons stands duly proved. Availability of alternative suitable accommodation :
22. It is the contention of the respondent that the petitioner has not disclosed in the petition that the petitioner during the contemporaneous period has let out the three shops on the ground floor and one shop on the mezzanine floor to various persons. RW1 has relied upon the site plan Ex. RW1/1, photograph Ex. RW1/2 and the CD Ex. RW1/3 in support CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 15 of 20 of his submissions. RW1 stated that one shop to the right of his shop is rented out to a tenant, namely Mr. Rajesh Kanwar Chettri who is operating and running his business under the name and style of "New Chinese Cottage" since 2014 which is shown in Pink colour in Ex. RW 1/1. The said tenant was occupying a portion on the second floor of the said premises, which is stated by the petitioner to be currently used by her children. One shop to the right of his shop is rented out to a tenant, namely Mr. Dharamvir who is operating and running his garment business under the name and style of "DTR Jeans" since 2016 which is shown in blue colour in the site plan Ex. RW1/1. One shop to the extreme right of his shop is rented out to a tenant, namely Mr. Rajesh who is operating and running his business under the name and style of "V.K. Paan Corner" since 2016 which is shown in orange colour in the site plan. The mezzanine floor is currently under occupation of the tenant, namely Mr. Manish who was inducted in the year 2015. The same is shown in purple colour in the site plan.
23. It is stated by RW1 that the petitioner has also concealed that the mezzanine floor shown in the purple colour which was used by her husband namely late Mr. Krishan Kumar Sharma as office till the year 2010. After his demised the very same office was run by the sons of the petitioner till the year 2015, when Mr. Manish was inducted as a tenant in the year 2015. The first floor is lying vacant since 2015 as the petitioner has been residing with her son Mayank Sharma in Kirti Nagar. The second floor of the premises is lying vacant.
24. Per contra it is submitted by PW1 that she has no other alternative CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 16 of 20 accommodation or premises in order to settle her sons or to run their office and practice in legal profession. It is also submitted that the other shops are smaller in size as compared to tenanted premises.
25. During crossexamination RW1 admitted that Rajesh Kumar Chettri is not running any shop in the said building nor he is residing on the second floor of the said building. RW1 further admitted that the shop Mark X in site plan Ex. RW1/1 is in the possession of Mr. Dharmveer and no measurements of the said shop have been mentioned by the respondent. Further he stated that the portion Mark Y in Ex. RW1/1 was in the possession of Mr. Anis. The portion Mark Z was in possession of Mr. Rajesh Kumar Chettri is now in possession of petitioner. He could not say since when the said pan shop in the name and style of U.K. Pan Corner is running in the suit property. He admitted that the pan shop is being run in the name of U.K. Pan Corner not V.K. Pan Corner. RW1 has himself admitted that both sons of the petitioner are running their office in tenanted premises, one from West Patel Nagar and another from Bangalore. He also admitted that in case the premises as shown at Mark X, Y, Y1 and Z in the site plan Ex. RW1/1 are all vacated, then they can be used as office.
26. Thus, from the site plan relied by the RW1, it is clear that the remaining shops as alleged by RW1 are all smaller in size as compared to the two shops available with the respondent. Further, it is clear that from the version of the RW1 itself that the said shops on the ground floor are occupied by other persons. Even if any of those shops which are of smaller size get vacated those cannot be considered to be alternate CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 17 of 20 suitable accommodation for the purpose of legal office of the sons of the petitioner as compared to the tenanted premises.
27. Another contention of the respondent is that the late husband of the petitioner was having his office on the mezzanine floor till the year 2010 and the same very office was being run by the sons of the petitioner till the year 2015 when it was let out to the tenant Manish in the year 2015. However, this contention lacks substance as mezzanine cannot be considered to be alternate suitable accommodation as compared to the ground floor on which the tenanted premises is situated. It is common knowledge that foot fall of customer would be more on the ground floor as compared to the mezzanine, first or the second floor. Hence, even if the upper floors are available those cannot be in any manner considered equivalent to the ground floor shops which are presently occupied by the respondent. Moreover, the first and second floor have already been stated to be residential in nature.
28. It cannot be denied that business being run on the ground floor is always much more profitable as the footfall of the customers on the ground floor is much more as compared any other floor. Reliance may be placed upon the law laid down in Rajesh Jain v. Quazi Sammin Ahmad 2015 (2) RLR 438 wherein it has been held that since eviction was sought for commercial purposes, it was rightly held that ground floor of the property would be more suitable. In K.B. Watts v. Vipin Kalra 2015 (220) DLT 402 it has been held that it is well settled that for a profession or business ground floor premises are always more suitable. It is trite law CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 18 of 20 that the tenant cannot dictate the landlord as to how he should utilize the premises. The respondent being the owner/landlord of the premises has all the right and choice to start his own business in the premises more suitable and convenient to him. Moreover, it is the sole prerogative of the petitioner, being a landlady, to decide which accommodation would be more suitable for her sons to run their office and the respondent cannot dictate the petitioner regarding the same.
29. Another contention of the respondent is that he is running his clinic from the tenanted premises which is the only source of his earning. However, comparative hardship to the respondent is no ground to be considered in case the premises is bonafidely required by the petitioner. In case of Mohd. Ayub v. Mukesh Chand (2012) 2 SCC 155, it was observed that "the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor". The same has been reiterated in Puran Chand Aggarwal v. Lekh Raj 2010 (2014) DLT 449. Thus, the said contention of the respondent is without any basis.
30. It is further averred by the respondent that the property where the premises in question is situated, comes within the local limit of Slum CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 19 of 20 Area. It is a well established law that the petitioner/landlord is not required to obtain necessary permission from Slum Authority for filing an eviction petitioner u/s 14 (1) (e) of the DRC Act, on the ground of bonafide requirement and hence, the said contention of the respondent is without any substance. It has been held in Madan Lal Gupta v. Ravinder Kumar 2000 (2) RCR 698 (SC)/ 17(1980) DLT 344 that the Slum Act is not applicable for filing eviction petition under Section 14(1)(e) of the Act.
31. Thus, in view of the above discussions, the petitioner has successfully proved all the essential ingredients of Section 14(1) (e) of the DRC Act. Accordingly, the eviction petition filed by the petitioner against the respondent under Section 14(1) (e) of the DRC Act is allowed. Petitioner is held entitled for recovery of the tenanted premises i.e. two shops at ground floor measuring about 225 sq. ft. (approx.) at 6153, Block 1, Dev Nagar, Karol Bagh, New Delhi as shown in red colour in the site plan annexed alongwith the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14(7) of the Act. Keeping in view the facts & circumstances of the case, no order as to costs.
Digitally signed by SUSHEEL SUSHEEL BALA DAGAR
BALA DAGAR Date: 2019.04.04
16:44:22 +0530
Announced in open Court (Susheel Bala Dagar)
on 03rd Day of April 2019 CCJ cum ARC(Central)
Tis Hazari Courts, Delhi.
(This judgment contains 20 pages.)
CIS No. 860/17 Kamini Sharma v. Dr. Chaman Lal Mittal Page 20 of 20