Delhi District Court
Sh. Kanwalkant vs M/S Montegomery Transport on 4 June, 2010
Kanwalkant v. Montegomery & ors.
IN THE COURT OF SH. TARUN KR. SAHRAWAT,
ADDL. RENT CONTROLLER, DISTT. NORTH: DELHI.
E No. 1079/2006
Unique Case ID No:
SH. KANWALKANT
S/o Sh. Gulshan Rai
R/o E 36/12, Rajouri Garden,
New Delhi 110027 ...Petitioner.
Versus
1. M/S MONTEGOMERY TRANSPORT
COOPERATIVE SOCIETY LIMITED
First Address 3968, Roshanara Road,
Delhi110007.
Second Address: 16, Shivaji Marg,
New Delhi.
2. M/s MONTGOMERY TRANPORT COMPANY
39063907, Hamilton Road, Morigate, Delhi.
3. M/S KARTAR CARRIERS.
39063907, Hamilton Road, Morigate, Delhi.
4. SH. GULSHAN RAI S/O SH. NAND LAL,
R/o E36/12, Rajouri Garden, New Delhi110027.
...Respondents.
Date of institution of the petition : 24/03/2003
Date on which order was reserved : 19/05/2010
Date of Decision : 04/06/2010
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Kanwalkant v. Montegomery & ors.
J U D G M E N T
04.06.2010 This is an eviction petition U/s 14 (1)(b) of the Delhi Rent Control Act, 1958 (herein after referred to as DRC Act).
(1). In the petition, it is stated that petitioner is the exclusive owner of the property bearing Municipal no. 3906 and joint owner of undivided half share of the property bearing Municipal no. 3907, Hamilton Road, Delhi. Respondent no. 4 is the other joint owner of undivided half share of the said property no. 3907. The petitioner is the landlord and respondent no. 1 is the tenant in respect of the entire property bearing municipal no. 3906 and common use of property no.
3907 on ground floor, Hamilton Road, Delhi (In short, called the 'premises'.) as specifically shown in blue and yellow colours in the annexed Site Plan. The tenanted premises are residential, but were let for non residential purpose to the tenant/respondent no. 1. Rate of rent of the premises is Rs. 115/ p.m. in addition to electricity and water charges. (2). It is further stated that respondent no. 1 was the E no. 1079/2006 Page 2/ 19 Kanwalkant v. Montegomery & ors.
tenant in the said premises at the time when petitioner purchased the same, therefore, petitioner does not know the date of letting and existence of agreement, if any in favour of the person who originally let it. It is alleged that respondent no. 1 sublet, assigned and parted with the possession of his entire tenanted premises in favour of respondent nos. 2 and 3 without the oral or written consent of the landlord. Respondent no. 1 is not in possession of any part of the suit premises nor he operates from the said premises. With these submissions, petitioner has prayed for grant of an eviction order U/Sec. 14 (1)(b) of the D.R.C. Act against respondent nos. 1, 2 and 3 in respect of the tenanted premises.
(3). In the Written Statement filed on behalf of respondent no. 1, relationship of landlord and tenant has not been specifically denied. It is stated that the premises are being used for the transport/commercial purpose since inception of the tenancy. Respondent no. 2 has no business activities in the suit premises. Respondent no. 3 is carrying out the business activities as a licensee agency of respondent no. 1 being part and parcel of the members of same family. It is stated that there is no submitting of the premises nor any rent is charged from respondent no. 3 by respondent no. 1. E no. 1079/2006 Page 3/ 19
Kanwalkant v. Montegomery & ors.
(4). It is further stated that respondent no. 1 is a transport cooperative society of the family members, which has been spreading its arms and wings in the last few decades. With the passage of time and expansion of the business activities and increase in the family members , number of the sister concerns had to be established to cope with the business. The society has got a number of premises which are put to use depending upon various factors. Respondent no. 3 is acting as an agency and nominee of respondent no. 1. The management of the Society as well as Agency are in the control of the same family with the respondent society having pre dominance over the activities of respondent no. 3. It is denied that respondent no. 1 at any time, has sublet, assigned and parted with the possession of his entire tenancy premises in favour of respondent nos. 2 and 3 as alleged. Thus, respondent no. 1 prayed for dismissal of the present eviction petition. (5). In the Written Statement filed on behalf of respondent no. 2, most of the averments of the petition have been denied for want of knowledge and lack of privity of contract of any nature whatsoever. It is stated that respondent no. 2 is neither the tenant nor subtenant in the suit premises and has been E no. 1079/2006 Page 4/ 19 Kanwalkant v. Montegomery & ors.
improperly impleaded just for the sake of harassment. It is further stated that respondent no. 2 is not at all carrying out any business from the suit premises therefore, the present eviction petition may be dismissed.
(6). In the Written Statement filed on behalf of respondent no. 3, it is stated that respondent no. 3 is carrying out the business activities as an agency of respondent no. 1 for last about two decades and it is not a subtenant in the premises in dispute. It is further stated that no rent is paid by respondent no. 3 to respondent no. 1 for the use of the premises as an agency of respondent no. 1 as it is managed by the persons who are the part and parcels of the members of same family. The overall control of suit premises and supervision of the business activities is within the same family with no stranger being introduced therein. Thus, the premises are in question are under absolute control and possession of the respondent society and no part of the same has been let out or parted with in favour of anyone including respondent no. 3, the alleged subtenant. Respondent no. 3 took some other objections on the lines of W.S. of respondent no. 1 and prayed for dismissal of the present eviction petition.
(7). Respondent no. 4 Sh. Gulshan Rai admitted the E no. 1079/2006 Page 5/ 19 Kanwalkant v. Montegomery & ors.
averments made in the eviction petition as correct and stated that he has no objection if the eviction order is passed in favour of the petitioner in terms of prayer in the petition. (8). Further, petitioner filed replication to the Written Statement of the respondent no. 1 to 3 whereby he denied that respondent no. 3 is a licensee agent of respondent no. 1 and it is part and parcel of the members of same family. It is stated that tenant is a cooperative society i.e. respondent no. 1 which is not a family and respondent no. 3 is an independent entity than respondent no. 1. It is denied that respondent no. 2 is not doing any business in the premises. Petitioner re iterated other averments of his petition and controverted the objections taken by respondent nos. 1, 2 and 3. (9). Matter was fixed for PE. Petitioner Sh. Kanwal Kant examined himself as PW 1. On the other hand, respondent Sh. Harmohinder Singh, President of respondent no. 1 Society examined himself as RW 1. Besides, Sh. Nand Lal, Junior Clerk, BSES, Sh. Jagdish Kumar, Meter Reader, DJB and Sh. Babu Ram Tyagi, ASI, PS Subzi Mandi were examined as RW 2 to RW 4 respectively. No other witness has been examined in this case.
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Kanwalkant v. Montegomery & ors.
(10). I heard the arguments advanced by the learned counsel for the opposite parties, perused the evidence and other material placed on record.
(11). Before I advert to the respective contentions of Ld. Counsel appearing for either parties, let us discuss the essential ingredients of Sec. 14(1)(b) of D.R.C. Act on which the petitioner may be entitled to an order of eviction, as under:
1. That there is a relationship of land lord and tenant between the parties;
th
2. That the tenant has, on or after 9 day of June, 1952, sublet, assigned or otherwise parted with possession of whole or any part of the tenanted premises without obtaining the consent of the landlord in writing.
1. That there is a relationship of land lord and tenant between the parties: (12). It is not disputed that there exists a relationship of landlord and tenants between petitioner and the respondent E no. 1079/2006 Page 7/ 19 Kanwalkant v. Montegomery & ors.
no. 1 in respect of the tenanted premies vide Ex. P1. However, it is alleged that present eviction petition is bad for misjoinder of the parties in so much so that respondent no. 4 alleged to be coowner ought to have joined the petitioner in filing the eviction petition.
(13). Having heard the arguments on this point, I find no strength in the plea of respondent as firstly, the issue of ownership is not to be decided in these eviction proceedings. Secondly, Sh. Gulshan Rai, coowner of the portion of the premises in dispute impleaded as respondent no. 4 in the array of the parties, has precisely admitted the facts of the eviction petition to be correct and also prayed for an eviction order in favour of the petitioner. Thirdly, as per settled law, a coowner is well entitled to maintain an eviction petition against the tenant. On this, I am supported by the case law of K.C. Agarwal v. Hardip Singh 2005(1)AD (Delhi) 587; wherein it was held that "coowner is owner and deemed to be landlord for the purpose of D.R.C. Act."
Similarly in another case of Sh. Ram Pasricha v. Jagan Nath & others RCR (80) 1976; it was held that "A coowner is an owner of the E no. 1079/2006 Page 8/ 19 Kanwalkant v. Montegomery & ors.
entire property as a sole owner of the property is. Jurisprudentially, it is not correct to say that a coowner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and coowner of the premises is not the owner of the premises within the meaning of Sec. 13 (1) (f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Sec. 13 (1) (f) as long as he is a coowner of the property being at the same time the acknowledged landlord of the defendants."
14. The above plea of respondent is found not legally maintainable, hence dismissed. In the light of above discussion, this issue is decided in favour of the petitioner and against respondents.
th
2. That the tenant has, on or after 9 day of June, 1952, sublet, assigned or otherwise parted with possession of whole or any part of the tenanted premises without obtaining the consent of the landlord in writing. E no. 1079/2006 Page 9/ 19
Kanwalkant v. Montegomery & ors.
(15). PW1 Sh. Kanwal Kant deposed that respondent no. 1 unauthorisedly sublet, assigned or otherwise parted with possession of his entire tenanted premises in favour of respondent no. 2 and 3 after 09/06/1952 without the oral or written consent of petitioner and that of respondent no. 4. PW1 further deposed that after doing so, respondent no. 1 did not conduct any business from the disputed premises and the said respondent ceased to be in possession and control of the said premises. Respondent nos. 2 and 3 are in actual possession and control of the entire disputed premises in which they are conducting their own business. Respondent nos. 2 and 3 are not sister concerns of respondent no. 1 and there is no common interest in respect of their business. Respondent no. 1 conducts its business at 3968, Roshanara Road, Delhi110007 and 16, Shivaji Marg, New Delhi. (16). On the other hand, Sh. Harmohinder Singh deposed that respondent no. 1 is a cooperative society being run under the name and style of M/s Montgomery Cooperative Goods Transport Society Ltd. Respondent no. 3 was incorporated as a partnership firm which has now been converted into a private limited company. RW1 further deposed that he is the E no. 1079/2006 Page 10/ 19 Kanwalkant v. Montegomery & ors.
President of respondent no. 1 and has also been partner of the partnership firm, now converted into a private limited company. M/s Kartar Carrier private limited, respondent no. 3. The suit premises are being used by the respondent society and its family associates only and there is no stranger in the suit premises so as to term the user of the premises as that of by any sublettee.
(17). RW1 testified that respondent no. 3 is acting as an agency and nominee of respondent no. 1. It is in consonance that the aims and objects of the society that respondent no. 3 is functioning from the suit premises. There is no concept of rent being charged in any manner. Moreover, the Management of the two are in the control of same family with the respondent society having predominance over the activities of respondent no. 3. It is a permitted user to achieve the objects of the society. Respondent no. 1 further deposed that RW2 has no business activities in the suit premises. Respondent no. 3 is carrying out the business activities as a licencee agency of respondent no. 1, being part and parcel of the members of same family. Respondent no. 1 has never sublet, assigned or parted with the possession of his entire tenanted premises in favour of respondent nos. 2 & 3 as alleged. RW1 denied that E no. 1079/2006 Page 11/ 19 Kanwalkant v. Montegomery & ors.
the premises remained under lock and key. (18). Learned counsel for respondents contended that the suit premises are being used by the respondent society and its family associates only and there is no stranger in the suit premises so as to term the user of the premises as that of by any subletee. Both the respondents no. 1 and 3 though are cooperative society and private limited company, but their members and functionaries are same persons and from within the same family. It is one integrated family unit and this arrangement has been made to meet the aims and objects of the society. There is no parting with or letting out of the premises or any part thereof to any stranger and the expansion is within the family of the members of the cooperative society. Overall control of the suit premises and supervision of the business activities is within the same family with no stranger being introduced therein. On this point, learned counsel for respondent sought reliance upon the following cases viz. (i). Celina Coelho Pereira & Ors. v. Ulhas Mahabaleshwar Kholkar & Ors. 2009 AIR SCW 7177, (ii). Associated Hotels of India Ltd. Delhi v. S.B. Sardar Ranjit Singh AIR 1968 SC 933, (iii). Smt. Krishnawati v. Hans Raj (1974) 1 SCC 280, (iv). Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri & others E no. 1079/2006 Page 12/ 19 Kanwalkant v. Montegomery & ors.
(1987) 3 SCC 538, (v). Jagan Nath (Deceased) through L.Rs v. Chander Bhan & Ors (1988) 3 SCC 57, (vi). Gopal Saran v. Satyanarayana (1989) 3 SCC 56.
(19). On the other hand, Learned counsel for petitioner drawn my attention towards the written statement filed on behalf of M/s Kartar Carriers, the respondent no. 3 herein, in another case no. E139/2003 vide Ex. RW1/F, wherein it is stated that respondent no. 2 M/s Montgomery Cooperative Goods Transport Ltd./ respondent no. 1 herein has no business activities in the suit premises. Whereas, in the Written Statement filed on behalf of respondent no. 1 in the present case, it is stated that respondent no. 1 is a Transport Cooperative Society of the family members which had been spreading its arms and wings in the last few decades. (20). Further, learned counsel for petitioner drawn my attention towards the reply filed by respondent no. 1 to the petition U/sec. 19(1)(a) of the Slum Act, 1956 before the Competent Authority (Slum), Delhi vide Ex. P6 wherein it is stated that tenancy of the property in question vested in M/s Montgomery Cooperative Goods Transport Society share holders, office bearers etc. for expansion of its activities by E no. 1079/2006 Page 13/ 19 Kanwalkant v. Montegomery & ors.
virtue of Resolution in the Executive Committee from time to time. The firms of M/s Kartar Carriers and Ms Montgomery Transport are sister concerns of the same family. The said two establishments are carrying on their business having acquired the interest in the tenanted premises being the members of same family and constituents and office bearers, the share holders and founders of the Cooperative Goods Transport limited.
(21). Further, learned counsel for petitioner brought in the extract of the "Agency Agreement" dated 05/03/1983 vide Ex. RW1/B wherein para no. 3 of the said agreement stated as under : "(a). That the agent shall pay royalty to the society @ Rs. 3250/ p.m. The rate of royalty is variable according to the discretion of the society depending upon the quantum or business done by the agent for use of G.R. and premises of Morigate and Najafgarh Road."
In para no. 7 of the said agreement, it is mentioned that "It is hereby agreed that all the furnitures and fixtures heretofore made or which hereinafter be affixed in premises no. 3906, Hamilton Road, Morigate, shall exclusively belong to and be maintained by the agent who would, however, pay the cost thereof to the society."
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Kanwalkant v. Montegomery & ors.
In para no. 8, it is mentioned that: "That all the employees of the society working at Morigate shall be taken over by the agent and hereinafter all such employees shall be considered to be the employees of the agents and no such employee shall have any right or lieu of their services with the society. The claims of such employees, if any, shall be satisfied by the Agent above and the Society will not be called upon to contribute any amount towards such claims of the employees. But the gratuity upto 15/02/1983 would be paid by the Society and thereafter, the liability would be met by the agent and the Society would stand absolved from this."
(22). By pointing out the above contents of exhibited documents, learned counsel for petitioner argued that petitioner has duly discharged his onus by adducing evidence on the fact that a party other than tenant is in exclusive possession of the premises. I am in agreement with the contention of learned counsel for petitioner that in the above referred Written Statement vide Ex. RW1/F, it is an admitted case of the respondents that Montgomery Transport Co operative Goods Transport Society Limited, respondent no. 1 has no business activities in the suit premises. Further, it is an admitted fact that respondent no. 1 is a Cooperative Society E no. 1079/2006 Page 15/ 19 Kanwalkant v. Montegomery & ors.
and respondent no. 3 is a private limited company. However, it is contended by the respondents that entire control over the business activities of respondent no. 3 would remain with society as they belonged to the members of same family. (23). Further, learned counsel for petitioner argued that though respondent no. 1 has stated in its W.S. that respondent no. 1 is a Transport Cooperative Society and it is in consonance with the aims and objects of the Society that the respondent no. 3 is functioning in the suit premises, but the respondents have not proved on record the aims and objects of the society, therefore, their submission on this point cannot be taken into consideration and thus, respondents have failed to discharge their onus that it is not a case of subtenancy in the premises.
(24). I find force in the plea of petitioners as admittedly, these are two separate legal entities and petitioner has succeeded to prove that respondent no. 1 is not carrying on any business activities in the premises in dispute and respondent nos. 2 and 3 are in possession of the premises and admittedly carrying on their business. In the circumstances, onus is shifted on the tenant to prove that it was not a case of E no. 1079/2006 Page 16/ 19 Kanwalkant v. Montegomery & ors.
subletting. As per settled law, initial burden of proving sub letting is on the landlord, but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession over the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that the tenant continues to hold legal possession in the tenanted premises. In the case of Kailash Kumar & others v. Dr. R.P. Kapoor 54 (1994) DLT 342, it was held that: "The question of subletting or parting with the possession would depend on the peculiar facts of each case and the basic principle enunciated even by the Supreme Court is that once it is proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts on the tenant to show in what capacity stranger is in exclusive possession of that portion and failure of the tenant to explain the presence of such a person in exclusive possession of the portion of the demised premises, presumption would arise that the portion was sublet or parted with possession in favour of the stranger by the tenant."
(25). In the case of Parvinder Singh v. Renu Gautam (2004) 4 SCC 7941 it was held that "If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, E no. 1079/2006 Page 17/ 19 Kanwalkant v. Montegomery & ors.
may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged subtenant."
(26). Similarly, in another case of Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh (1968) 2 SCR 548, the Hon'ble Apex Court observed as under: "When eviction is sought on the ground of subletting, the onus to prove subletting is on the landlord. If the landlord primafacie shows that the occupant, who was is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence." (27). In the light of above discussion, I hold that the petitioner has successfully established his case for eviction U/Sec. 14 (1) (b) of D.R.C. Act against the respondents. Hence, an eviction order is passed U/Sec. 14 (1) (b) of D.R.C. Act in favour of the petitioner and against the respondents in respect of the entire property bearing municipal no. 3906 and E no. 1079/2006 Page 18/ 19 Kanwalkant v. Montegomery & ors.
common use of property no. 3907 on ground floor, Hamilton Road, Delhi as specifically shown in blue and yellow colours in the annexed Site Plan vide Ex. P1. File be consigned to Record Room.
Announced in open court on 04 June, 2010.
th Tarun Kr. Sahrawat A.R.C.(North)/Delhi (1+2 separate copies are attached).
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Kanwalkant v. Montegomery & ors.
E No. 1079/2006 KANWALKANT V. MONTEGOMERY & OTHERS.
04/06/2010 Present: Proxy counsel for the parties.
Vide my separate judgment of even date, I hold that the petitioner has successfully established his case for eviction U/Sec. 14 (1) (b) of D.R.C. Act against the respondents. Hence, an eviction order is passed U/Sec. 14 (1) (b) of D.R.C. Act in favour of the petitioner and against the respondents in respect of the entire property bearing municipal no. 3906 and common use of property no. 3907 on ground floor, Hamilton Road, Delhi as specifically shown in blue and yellow colours in the annexed Site Plan vide Ex. P1. File be consigned to Record Room.
Tarun Kr. Sahrawat A.R.C. (N)/ Delhi.
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