Delhi District Court
Harish Talwar vs Rani Gadhoke (Deceased) Represented By on 20 October, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 53/2008
ID No.: 02403R0987532008
Harish Talwar
2nd Floor, 44, Ring Road,
Lajpat NagarIII New Delhi 24. ... Appellant.
Versus
Rani Gadhoke (deceased) represented by
her LRs:
(i) Sneh Gadhoke w/o late Sh. Ved Kumar Gadhoke,
(ii)Arun Gadhoke s/o late Sh. Ved Kumar Gadhoke,
(iii)Sunil Gadhoke s/o late Sh. Ved Kumar Gadhoke, and
(iv)Raman Gadhoke s/o late Sh. Ved Kumar Gadhoke,
All R/o S21, Panchsheel Park, New Delhi.
... Respondent.
Instituted on: 13.05.2008.
Judgment reserved on: 20.10.2011
Judgment pronounced on :20.10.2011
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Control Act ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 1 of 18 (hereinafter referred to as "DRC Act") is directed against judgment dated 19.04.2008 passed by Sh. Amit Kumar, Additional Rent Controller (ARC) in eviction proceedings registered as E553/2007(1999). Vide the impugned judgment the learned ARC decreed the petition presented by the respondent (since deceased and now substituted by her legal heirs) on 08.04.1999, seeking an order of eviction in respect of the tenanted premises described as barsati at second floor of property no. 44, Ring Road, Lajpat NagarIII, New Delhi on the grounds under Section 14 (1) (c), (d) and (h) of DRC Act.
2. Though the eviction petition had been preferred also invoking Section 14 (1) (k) of DRC Act, the land beneath the property in question having been converted into free hold, the said ground did not survive and, therefore, petition to that extent was dismissed by the ARC. That part of the judgment has attained finality as the respondents did not put any challenge to it.
3. On notice, the respondents have appeared to resist the appeal.
4. I have heard Sh. Ram Bihari Gupta, advocate for the appellants and Sh. Chaman Lal Sachdeva with Sh. Sanjay Sindhwani, advocates for the respondents. I have gone through the record with their assistance during the course of arguments. ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 2 of 18
5. On perusal of the pleadings as indeed the evidence led and the submissions made before this court certain basic facts have emerged which are admitted on both sides and may be taken note of at the out set.
6. It is admitted that the appellant was inducted as tenant in respect of the suit premises some time in MarchApril, 1978. Though initially a contention was raised that the tenancy was subject matter of some lease deed executed in writing to which effect suggestions were also given to AW1( son of petitioner before ARC) during his crossexamination, faced with clear admission of the appellant appearing as RW1 that no rent note was executed, it is now beyond controversy that the tenancy in respect of the premises in question was oral.
7. It has come out during the course of evidence that was led, particularly during the crossexamination of RW1 that the property in question is built over a plot of land admeasuring 800900 square yards. The property appears to be three storied structure, built some time in 1958. It is admitted on behalf of the respondent that the entire property was originally let out to National Building Construction Corporation (NBCC) which had put it to commercial use. It appears that on this account Land & ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 3 of 18 Development Office ( L&DO) in the Government of India took exception on the ground that the said nonresidential user was in violation of the perpetual lease deed (under which the land beneath the structure was held) and, therefore, ordered reentry. AW1 during his crossexamination has stated, interalia, that a penalty of about Rs. 80,000/ was paid and the order of reentry came to be quashed by the concerned authority. The evidence to this effect has not been refuted at any subsequent stage during these proceedings.
8. It is further undisputed that NBCC came to be evicted from the property in question pursuant to a litigation initiated by the landlord. After the said eviction of first tenant (NBCC) from the property, the landlord gave different portions on rent to various tenants. It is against the said back drop that the ground floor portion, undisputedly comprising of three bedrooms, one drawing room, kitchen, servant quarter, garage etc., was let out to the appellants under the cover of a permission taken from the court of Rent Controller under Section 21 DRC Act, some time in January, 1978 for a period of three years. The very fact that the tenancy was created through a permission taken under Section 21 DRC Act would show that the purpose of tenancy ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 4 of 18 would have been reflected in the pleadings before ARC to be residential. It appears that subsequently, the first floor portion was let out by the landlords to M/s Praveen Chemicals. Though initially this fact was denied by AW1, during his cross examination, it came to be conceded as a fact at the time of crossexamination of the appellant appearing as RW1 wherein he yielded ground to the effect that the said letting of first floor to M/s Praveen Chemicals was also under Section 21 DRC Act.
9. It is admitted case that the appellant was inducted in respect of the suit premises in March/April, 1978. The controversy in this context restricts itself to the purpose of tenancy to which one shall advert later. It is further undisputed that after the lapse of the period for which tenancy had been created under Section 21 DRC Act respecting the ground floor portion in January 1978, the appellant would not vacate. It appears that he had started using the said portion for commercial purposes and put up a defence to the petition that was brought before the authorities under Rent Control Act to the effect that the purpose of letting was, in reality, residentialcumcommercial. The proceedings initiated by the landlord to execute the order under Section 21 DRC Act resulted in protracted litigation which eventually went ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 5 of 18 up to the Hon'ble Supreme Court of India. The end result of the said litigation was eviction of the appellant some time in September, 1998 through process of the executing court. Apparently, the findings recorded in that case were that the ground floor portion had been let out for residential purposes only.
10.In the pleadings, the appellant has raised the issue in the pleadings of the user of the ground floor portion for commercial purposes by the daughterinlaw of the respondent for her medical practice for certain period and the rest of the portion having been let out to other tenants named M/s Urashia International and M/s KBC Ltd. But then, no evidence has been led in that regard, the said fact having been disputed by the respondents.
11.It is undisputed case that the portion in tenancy on the second floor is a single room accommodation described as barsati which does not have the facilities of kitchen, W.C. cupboards etc.
12.The eviction petition alleged that the appellant had acquired vacant possession of premises no. N90, Panchsheel Park, New Delhi and 53 Ring Road, Lajpat NagarIII. It was alleged that ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 6 of 18 the tenanted premises in question was not being used by the appellant for residential purposes for over two years preceding the filing of the petition and instead he along with his family was residing in property No. 90, Panchsheel Park, New Delhi. In the written statement the facts of the acquisition of the said two other properties were not specifically denied. Thus, the pleadings to that effect are liable to be treated as admitted. In the written statement, the tenant would rather claim that property no. 53 Lajpat Nagar was not a residential property. In the course of evidence, however, it has come to be admitted that the appellant with his family is residing in property no. 53, Lajpat Nagar, New Delhi and further that property no. N90, is also residential in nature.
13.The petitioner pressed for an order of eviction on the ground that the purpose of letting being residential, the appellant had misused it for commercial purposes within the mischief of Section 14(1)(c) DRC Act. With reference to the acquisition of or residence in the other property, the order of eviction under Section 14(1)(d)&(h) was also pressed for. The respondents would refer in the petition to notices sent and served on the appellant on 24.07.1998 and 21.12.1999, whereby appellant ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 7 of 18 had been asked to stop the misuser. The receipt of the notices is not disputed. Rather, the appellant also claimed to have sent a reply in 1999 joining issue with the respondent.
14.The case was put to trial by the ARC in the course of which V. K. Gadhoke, son of the original petitioner appeared as AW1, examined before the local commissioner appointed by the ARC. The witness was crossexamined at length by the respondent. In addition to that, the respondents examined Sunil Gadhok AW2 on 11.08.2006, this basically to prove document showing the conversion of the property into free hold and the mutation thereof in the records of L&DO in the names of the legal heirs of the petitioner and her husband.
15.On the other hand, the appellant examined himself tendering his evidence Ex. R1 on which he was crossexamined at length as RW1.
16.The learned ARC heard arguments. The basic contest before him, thus, raised was respecting the purpose of tenancy, rest of the facts necessary to constitute the case in favour of the landlord for order of eviction under Section 14 (1) (c), (d) &(h) DRC Act having been admitted. The learned ARC returned findings in favour of the respondents and thereupon passed ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 8 of 18 eviction order on the said three grounds.
17. Aggrieved with the said findings of fact, the appellant has come up in this appeal before this court under Section 38 of DRC Act.
18.It is admitted by both sides that the fate of the appeal hinges essentially on the question of fact as to what was the purpose of tenancy of the premises in question. Strictly speaking, under Section 38 DRC Act as has been amended, an appeal on question of fact does not lie. Nonetheless the argument of the appellant being to the effect that evidence has not been properly appreciated and that the findings are perverse, I have heard both sides at length on this issue.
19.The learned counsel for the appellant during the course of arguments pressed in aid A. N. Kapur Vs. Pushpa Talwar 1992 RLR (NSC) 45, S. Raghbir Singh Vs. Sheelawanti 90(2001) DLT 284, Joginder Singh Vs. Uma Vati 1986(1) RCR 623, Parmod Kumar Vs. Bhagwat Sarup & ors 1981(1) RCR 628 and Khairul Nisan Vs. Tufail Ahmed 1993 RLR (Note) 75. His contention is that the burden of proof in respect of the question as to what was the purpose of tenancy was ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 9 of 18 squarely that of the landlord who was seeking eviction. It has been argued that the ARC had misdirected himself by drawing conclusions and inferences on the basis of failure of the tenant to produce on record documentary evidence respecting the user of the premises in question for commercial purposes and the period for which the said use has been made.
20.I do not find any substance in the above argument on onus for the simple reason that in a case where both sides have led evidence, question of burden of proof pales into insignificance. The landlord had discharged his initial burden by appearing on oath through AW 1 to affirm that the purpose of tenancy was residential and, therefore, it cannot be said that burden has not been discharged.
21.The premises in question admittedly has been used by the appellant for the purpose of business of his firm described as M/s Yak International. It is not clear from any document filed on record as to since when he was using this premises for such purposes. He has referred to water bills Ex. RW 1/4 to 8 and electricity bills Ex. RW 1/10 to 36, to show that the concerned service providers had been charging water/electricity supply to this particular portion at nondomestic rates. But then, as ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 10 of 18 pointed out by the counsel for the respondents all these documents relate to the period after filing of the eviction petition. There is no shred of document to such effect relating to any earlier period. Even otherwise, nothing turns on such billing by the water/electricity supply department, this in view of the admitted fact that the premises had actually been used by the appellant for nondomestic purposes. Only because water and electricity supply services have been charged at non domestic rates, it cannot be inferred that the user of the premises for nonresidential purposes was with the consent of the landlord.
22. A lot of argument was generated on the basis of the defence with which the earlier proceedings under Section 21 DRC Act respecting the ground floor were contested. The counsel for the appellant would argue that the permission under Section 21 DRC Act was only a ruse and that the actual purpose agreed upon by the landlord in respect of the ground floor portion was residentialcumcommercial. In the face of the result of the said earlier litigation, such arguments cannot be allowed to be agitated and, therefore, must be rejected out right.
23.It appears that the appellant was prosecuted by the Delhi ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 11 of 18 Development Authority some time in 1987 and then in 2000 on the allegations that by using the premises in question for commercial purposes, he had committed offences under Section 29(2) of Delhi Development Act. Admittedly, both the said prosecutions resulted in he being acquitted firstly by judgment dated 14.03.1989 by Sh. Babu Lal, Metropolitan Magistrate and then vide judgment dated 17.08.2005 by Sh. Vinay Kumar Khanna, Metropolitan Magistrate. The appellant would refer to the said judgments to contend that he had been using the premises for commercial purposes and, therefore, the consent of the landlord should be inferred. To similar effect is the reference to the fact that the landlord having issued notice on 24.07.1980, asking the user of the premises for commercial purposes to be stopped did not come with eviction petition on that ground till 08.04.1999. His argument is that this conduct of the landlord would show that he had full knowledge and, therefore, had consented to such misuser. In absence of a written rent agreement, this is sought to be presented as a circumstance evidencing that the purpose of tenancy was non residential.
24.As regards the nonfiling of the eviction petition on the ground ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 12 of 18 under Section 14(1)(d) DRC Act for 19 years after the issuance of notice dated 24.07.1980, I find substance in the explanation that the landlord was focusing on prosecution of the eviction petition under Section 21 DRC Act through out the said period. Those proceedings resulted in the order of eviction only after 18 years. The landlord explains that since barsati room was let out to the tenant additionally as an extension of the ground floor, it was legitimately expected that on being evicted from the ground floor portion, he would peacefully handover the possession of the barasti also. Since that did not happen, the landlord had to take out separate proceedings before the ARC.
25.As regards the aquittal of the appellant by the court of Metropolitan Magistrates in prosecutions under Delhi Development Act, it is clear from the perusal of the judgments that the contest of the said proceedings was by the tenant, not on the ground that landlord had inducted him for such purpose. His defence mainly was that the Master Plan had came into being after he had been inducted and therefore, his user could not be faulted for purposes of bringing home criminal charge in its violation. In this view, nothing turns on the said acquittal in favour of the appellant.
ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 13 of 18
26.The counsel for the appellant has argued that the family of the appellant consisted only of himself and his wife in March/April 1978. His contention is that there was no need for an additional space for residential purposes beyond what was available at ground floor. He contended that the barasti, therefore, was taken on rent by way of separate tenancy agreement, albeit orally, to the knowledge of the landlord for commercial purposes only.
27.It is the argument of the appellant that it cannot be conceived that a family only of husband and wife would seek additional residential premises over and above three bed rooms, one drawing room and other services at the ground floor. In the same context, he would also refer to barasti floor not having any kitchen, WC etc. Therefore, the argument is that such portion was at any rate unfit for residential purposes.
28.In the above context, I find that the contention has been rejected by the ARC for very valid reasons as set out in para 8 of the impugned judment, which I extract in extenso as under: "I have given my consideration to this aspect also yet I find no reason to agree with it since admittedly the eviction petition filed for the ground floor was decreed in ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 14 of 18 favour of the petitioner only for the reasons that it was let out for residential purposes and it is highly improbable that only a room on the barsati floor was let out for commercial purposes. It may be that it has been used contrary to the purpose of letting by the respondent but merely because there is no kitchen, latrine, bath room annexed on the barsti floor or there are no almirah inbuilt in the room, it cannot be presumed that it was let out for commercial purposes.
It looks that the same was provided just as an annexe to the ground floor. Otherwise also, no record whatsoever has been filed by the respondent to show that what type of commercial activity he carried out from the suit premises. The respondent in his cross examination admits that electricity in the suit premises has been disconnected by the authorities. He also admits that he does not have any permission from the petitioner to use the premises for business purposes. He also admits that he has no document to show that he was using the premises for commercial purposes. He has not been able to produce any income tax, sales tax record nor his accounts books, bills etc. to show the purpose of letting and there seems to be force in the contention of the counsel for the petitioner that the barsati floor was let out immediately after the letting out of the ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 15 of 18 ground floor only when the respondent requested that the accommodation on the ground floor is insufficient and there seems to be no reason to hold that the premises in dispute was let out for different purposes other than that of the ground floor. In this regard it is very important to note that the respondent in his affidavit, filed in support of his examinationinchief in para 6, himself states that the deponent require extra accommodation, he requested the then landlord to let out the suit premises to him.
The word accommodation used by the respondent in his examinationinchief itself shows that the premises was required to accommodate i.e. for residential purposes.
Otherwise a premises for commercial
purposes is never required for
accommodation."
29. I wholly agree with the reasoning supplied by the learned ARC in reaching the conclusions as set out in the above mentioned para and, therefore, endorse the same.
30.It is further argued by the counsel for the appellant that the fact that the tenancy in respect of the suit premises was created 3/4 months after the permission was taken under Section 21 DRC Act, is significant. The submission is that the landlord was ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 16 of 18 well aware that for creating a tenancy for residential purposes, jurisdiction under Section 21 DRC Act was the proper course. It is argued that if the tenancy in respect of barsati floor was also to be created for residential purposes, nothing stopped the landlord from including it in the tenanted portion let out under Section 21 DRC Act in January, 1978 only.
31.I do not find any substance in the above arguments for the simple reason that it is own case of the appellant that after the said tenancy in January, 1978 respecting the ground floor, it is he who had sought additional accommodation pursuant to which the barsati floor was also let out to him. The fact that the ground floor portion was let out under Section 21 DRC Act for residential purposes shows that the tenant actually would not have required the facilities in the nature of kitchen, bath room etc. in the additional space at the second floor. Therefore, the absence of such facilities at that floor is of no consequence.
32.The property in question is admittedly part of a residential locality. The counsel for the appellant was not in a position to dispute that under the Master Plan the property has to be used for residential purposes only. In fact, the appellant has admitted that on account of commercial user of the premises by him, it ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 17 of 18 has since been sealed by the Municipal Authority. For the same reasons, even the electricity supply stands disconnected. The manner in which the property has been constructed also demonstrates that it was intended to be used for residential purposes only.
33.In the above facts and circumstances, I do not find any substance in the contentions raised in this appeal. The judgments cited at bar do no help the appellant. The predominant use of the property is residential and surrounding circumstances also confirm the said fact.
34.For the above reasons, the impugned judgment cannot be faulted. It is, therefore, upheld and the appeal stands dismissed.
35.The trial court record be returned with copy of this judgment.
36. File of the appeal be consigned to Record Room. Announced in open Court today on this 20th day of October, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
ARCT No. 53/08 Harish Talwar Vs. Rani Gadhoke 18 of 18