Delhi District Court
Sh. Bansi Lal vs Sh. Kamal Kishore on 30 August, 2013
//1//
IN THE COURT OF SH. SATISH KUMAR ARORA, ARC-1(CENTRAL)
TIS HAZARI COURTS, DELHI.
E-30/12
Sh. Bansi Lal
S/o Late Sh. Bhola Ram
R/o 11881/1, Street no. 10,
Sat Nagar, Karol Bagh,
New Delhi-110005.
...Petitioner
VERSUS
1. Sh. Kamal Kishore
S/o Sh. Mohan Lal
2. Sh. Sanjay Kumar
S/o Sh. Mohan Lal
Both R/o: 11881,
first & second floor,
Gali No.10, Sat Nagar,
Karol Bagh, New Delhi-110005.
...Respondents.
Petition u/s 14 (1) (e) r/w Section 25-B of Delhi Rent Control Act
1. Date of institution of the case : 17.02.2012
2. Date of Judgment Reserved : 19.08.2013
3. Date of Judgment pronounced : 30.08.2013
JUDGMENT
1. By this final order, I shall dispose of the application u/s 25-B of the Delhi Rent Control Act, 1958 (in short, 'DRC Act') filed by the respondents seeking leave to contest the eviction petition. Before I take up the grounds as taken up by the respondents in their application, the brief facts of the eviction petition may be taken note of.
2. Briefly stated, the case of the petitioner is that he is the lawful and E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 1 of 12 //2// exclusive owner of the property bearing no. 11881/1, Street no. 10, Sat Nagar, Karol Bagh, New Delhi-05 by virtue of a registered gift deed dated 19.07.1996 executed by his late mother Smt. Paribai in his favour. Initially, the said property was alloted by the L & DO Department to Sh. Nem Raj @ Nemomal, grandfather of the petitioner, which was subsequently transferred in the name of late Smt. Paribai on the basis of license deed and conveyance deed. Petitioner has got mutated the property in his name vide mutation letter no. L & DO/PS-762 dated 01.08.2005 of the Ministry of Urban Development, L & DO Office, New Delhi. Respondents Kamal Kishore and Sanjay Kumar who are the sons of Sh. Mohan Lal, cousin brother of the petitioner are claimed to be the tenants in the tenancy premises which is one shop measuring 6 ½ X 9 ½ situated at ground floor of 11881/1, Street no. 10, Sat Nagar, Karol Bagh, New Delhi-110005. The tenancy premises was let out at a monthly rent of Rs. 200/- excluding other charges in the year 1986 when the cousin brother of the petitioner approached him and that owing to family relations no rent agreement was executed between the parties. Respondents who are running their general stores were permitted to partition the tenancy premises by mounting a wooden partition wall therein.
3. The bona fide requirement of the tenancy premises is pleaded by the petitioner on the following facts:- that the family of the petitioner consists of himself, his wife and his son Rishi who is in the final year of his graduation. Petitioner aged about 61 years has retired from Airport Authority of India and his wife aged about 56 years is a house wife and is suffering from various ailments like asthma, bronchitis, osteoporosis etc. The present residential accommodation available with the petitioner and his family consists of two rooms, one kitchen and two latrine-bathroom more specifically shown in green E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 2 of 12 //3// in the site plan filed with the eviction petition. Petitioner requires seven rooms in total for his residential use which is one room for personal use, one room for his grown up son, one room as a study for his son, one guest room, one puja room, one room for his consultancy office and one drawing room. It is stated that as the petitioner and his wife are old aged, the entire ground floor portion wherein the tenancy premises is situated would be changed and exclusively used by the petitioner for residential purpose by preparing a two room set. It is further stated that petitioner was also charged with a fine of Rs. 1,96,296/- by the L & DO department on account of misuser of the property for commercial purpose. It is further stated that respondents were served with a legal notice dated 12.01.2012 which was replied by them vide their reply dated 31.01.2012.
4. Respondents in their leave to defend application and supporting affidavits challenged the eviction petition and the bona fide requirement of the tenancy premises of the petitioner on the following grounds:-
(i) That the petitioner in the strict sense is not the landlord of the respondents. The reason given is that the petitioner and the father of the respondents were the real brothers being the sons of Sh. Bhola Ram.
However, as Sh. Narain Dass brother of Sh. Bhola Ram was issue less, Sh. Mohan Lal was adopted by him as his son. That in the year 1985-86 after the death of petitioner's father, a compromise was arrived at between the petitioner and respondent's father with the aid and advice of Smt. Paribai whereby it was agreed that the entire Kacha building then constructed on the aforesaid property would be demolished and on the finances being provided by the petitioner and respondent's father a pucca two storied building would be constructed wherein one corner shop with two side opening would be E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 3 of 12 //4// given to the respondents forever. Owing to family relations, no transfer documents were executed and even during the lifetime of late Smt. Paribai no rent was ever asked or demanded from the respondents. It was only when the rent receipt was required for installation of electricity meter in the shop that the respondents took a rent receipt for the said specific purpose.
(ii) That pursuant to Master Plan of Delhi, the road in front of the tenancy premises has been declared as a mix use land and consequently since the year 2006 respondents have been paying the registration charges and the mix use charges to the MCD. Therefore, as per the sanctioned building plan of the property in question, ground floor can only be used for shops/commercial purpose and not for residence.
(iii) That neither the petitioner nor his wife are suffering from any ailments so as to disable them to continue residing at the first floor. Petitioner's wife who is aged about 55 years is keeping good health and has no difficulty in climbing the stairs. Further, her medical reports are not suggestive of any serious problem or Osteoporosis.
(iv) That petitioner already has two bed rooms with one drawing- dinning, two bathrooms, one kitchen, one store and one puja room with balcony on either side on the first floor of property in question with one bedroom and a toilet on the terrace. The available accommodation is thus sufficient for the petitioner and his family which consists of his wife and his son. Also, as the petitioner and the respondents are close relatives and are neighbours residing in the adjacent house, there is no requirement of any additional space for the stay of relatives who are mostly common to both the families. Thus, the requirement of seven rooms by the petitioner is not a bona fide requirement. Also, petitioner is leading a retired life and is getting about E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 4 of 12 //5// Rs. 30,000/- as pension in addition to good amount of rent from other tenants on the ground floor, therefore, he has no need of starting his consultancy business/office. Rather, the petitioner in collaboration with a builder wants to reconstruct the property in question into a multi storey building. Thus, eviction of the respondent is sought on factually incorrect and absurd averments made in the eviction petition.
5. Reply/rejoinder to the leave to defend was filed by the petitioner wherein the averments of the eviction petition were reiterated and reaffirmed and those of the leave to defend were controverted and denied. Respondents also filed their rejoinder therein reiterating the case as projected by them in their leave to defend.
6. Ld. Counsel for the petitioner and Ld. Counsel for the respondents were heard and the file including the written submissions filed on behalf of the respondents was carefully perused and considered.
7. Section 14 (1) proviso (e) of the DRC Act provides that the Controller may pass an eviction order in respect of a premises let for residential purposes on the grounds that the same is required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation. Insofar as the purpose of letting is concerned which has been shown as residential in the aforesaid provision, it has been done away with by the Hon'ble Supreme Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, wherein an eviction petition was held to be maintainable on the ground of bonafide requirement in respect of the property which were let out for commercial E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 5 of 12 //6// purposes as well. Thus, for the petitioner/landlord to establish his case u/s 14 (1) (e) of the DRC Act, he has to prove that:- (i) he is the owner of the tenancy premises; (ii) that the tenancy premises is required bona fide by him for his own use or for any member of his family dependent upon him; & (iii) that he has no other reasonably suitable residential or commercial accommodation.
8. Insofar as the issue of ownership of the tenancy premises is concerned, ld. Counsel for the respondent while submitting that there is no landlord-tenant relation between the parties argued that the alleged gift deed by late Smt. Paribai is a forged, fabricated, illegal, invalid and a sham document which fact stands proved as whereas the alleged gift deed is of 19.07.1996, in the written statement dated 22.01.1999 jointly filed by the petitioner alongwith the father of the respondents and late Smt. Paribai in civil suit 125/2001 there is not even a whisper of the said gift deed. Further, petitioner is the real paternal uncle of the respondents being the real biological brother of Sh. Mohan Lal, father of the respondents. That, therefore, the property in question devolved partly upon the father of the respondents directly from the original owner upon his death. It was further argued that the tenancy premises by way of an oral family settlement was exclusively given to Sh. Mohan Lal, father of the respondents and the same status exists even as on date. It was further argued that petitioner by some illegal mutations on the basis of the alleged gift deed has claimed ownership of the property in question and it has been challenged by the father of the respondents by filing a suit for declaration and permanent injunction which is pending adjudication. Per contra, ld. Counsel for the petitioner argued that petitioner is claiming ownership by virtue of a registered gift deed of his late mother and even on the basis of the said gift deed, mutation of the property in E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 6 of 12 //7// question has been done in his favour. It was further argued that rent receipts with respect to the tenancy premises have been issued and this fact is not disputed by the respondents, rather they have taken a vague plea that the rent receipt was asked for the purposes of installation of electricity meter and other civic authorities.
9. Having heard the rival contentions of the ld. Counsel for the parties, I am of the considered view that no triable issue has been raised by the respondents insofar as the ownership of the tenancy premises and the relationship of landlord-tenant between the parties is concerned. Merely because, petitioner and the respondents happen to be close relatives, it cannot be said and believed that there can be no relationship of landlord- tenant between the parties. It is a bald assertion of the respondents that on account of an oral family settlement having taken place with the aid and advice of late Smt. Paribai, the tenancy premises was perpetually given to the respondents. Rather, respondents have taken contradictory stands regarding the ownership of the tenancy premises not only in their leave to defend but also in their reply dated 31.01.2012 to the legal notice dated 12.01.2012 of the petitioner. Whereas, in the leave to defend in para no. (i) it has been stated that on the death of Sh. Nemomal who was the original allottee of the property in question, the father and the grandmother of the respondents jointly inherited the property alongwith the petitioner's father Sh. Bhola Ram. In para no.(o) of the leave, it has been stated that in the year 1985-86, a compromise/a family settlement took place between the petitioner and the father of the respondents in the presence of Smt. Paribai to the effect that with the finances to be jointly contributed by them, a pucca two storied building would be constructed and in lieu thereof one corner shop with two side E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 7 of 12 //8// opening (tenancy premises) would be given to the respondents forever. In addition to these contradictory statements, in their reply, respondents have stated that the tenancy premises would be given to them in perpetuity at a monthly rent of Rs. 200/- without any right to cancel or determine the said tenancy. Thus, whereas respondents have taken contradictory stands with respect to the relationship of landlord-tenant between the parties and the ownership of the tenancy premises, petitioner is relying upon cogent documents which are the registered gift deed of his late mother, the mutation of the premises in question by the concerned agency of the Government in his name and the rent receipts. Thus, petitioner succeeds in prima facie establishing his claim of ownership of the tenancy premises and the relationship of landlord-tenant between the parties.
10. With respect to the issue of alternative accommodation and bona fide requirement, ld. Counsel for the respondents argued that the present case is a case of requirement of additional accommodation and as per the settled law, leave to defend must generally be granted. While so arguing, ld. Counsel for the respondent placed reliance upon the judgment of Hon'ble High Court of Delhi in S.K. Seth & Sons Vs. Vijay Bhalla, 191 (2012) DLT 722 wherein while relying upon the judgment of Hon'ble Apex Court in Santosh Devi Soni Vs. Chand Kiran, JT 2000 (3) SC 397 it was observed that the respondent/landlord being in possession of an alternate shop in a commercial area essentially makes it a case of requirement of additional accommodation and in such case leave must ordinarily be granted to the tenant. It was further argued that petitioner in his eviction petition has stated that he needs a two room set on the ground floor to accommodate his family. It was further argued that petitioner had filed eviction petitions against various tenants and three of E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 8 of 12 //9// which have been allowed and therefore, the bona fide requirement of the petitioner stands duly met. It was further argued that petitioner is getting a handsome pension and thus has no need for a room or space for his consultancy office. It was further argued that even otherwise petitioner has not stated anything about the nature of such consultancy nor has he submitted or stated any scheme or documents with respect thereto. It was further argued that as per the sanctioned building plan of the property in question and the Master Plan, only shops are permitted to exists on the ground floor and that it cannot be used for the purpose of residence. It was submitted that even the MCD has approved the road adjoining the tenancy premises as mixed land use and the respondents have paid the mixed use charges to the MCD, the copy of the receipts whereof have been filed on record. It was thus submitted that respondents have raised sufficient triable issues insofar as the availability of alternative accommodation and bona fide requirement of the petitioner is concerned. While so submitting Ld. Counsel for the respondents relied upon the following citations:-(i) Hindustan Zinc Ltd. Vs. Lt. Col. Satya Pal Wadhwa & Anr, 194 (2012) DLT 244; (ii) Aggarwal Papers Vs. Mukesh Kumar Decd. Thru. LRs, 194 (2012) DLT 605; (iii) Sudhakar Singh Vs. Sunil Batra & Ors, 192 (2012) DLT 491; (iv) Vinod Ahuja Vs. Anil Bajaj & Anr, 194 (2012) DLT 203; (v) Ganga Dass Vs. D.N. Singhal & Anr, 196 (2013) DLT 73 A (CN); (vi) Tarun Pahwa Vs. Pradeep Makin, 198 (2013) DLT 15 (CN); (vii) G.C. Kapur Vs. Nand Kumar Basin & Anrs, VIII (2001) SLT 100.
11. Per contra, ld. Counsel for the petitioner argued that respondents have again made a bald assertion regarding the availability of additional accommodation with the petitioner. It was argued that mere filing of the site E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 9 of 12 //10// plan by the respondents cannot be taken to be as sufficient for believing that the petitioner has available with him additional accommodation on the second floor of the property in question. It was argued that the correct status of the entire property can be seen/inferred from the notice dated 10.08.2006 served upon the petitioner by the L & DO office, Nirman Bhawan, New Delhi which makes a mention of only a Barsati floor over and above the first floor which is in the occupation of the petitioner. It was further argued that merely because MCD is taking mixed land use charges from the respondents, it cannot be said that the ground floor portion cannot be used for residence purpose. It was further argued that misuse charges to the extent of Rs. 1,96,296/- have been levied by the L & DO office and the copy of the notice thereof has also been filed on record by the petitioner. With respect to the contention of ld. Counsel for the respondent that in the absence of any document having been filed on record by the petitioner, his requirement of one room for his consultancy office cannot be believed, ld. Counsel for the petitioner relied upon the judgment of Hon'ble High Court of Delhi in Mukesh Kumar Vs. Rishi Prakash, 174 (2010) DLT 64. Reliance was also placed upon the judgment in John Impex Pvt. Ltd. Vs. Dr. Surinder Singh and Ors., 135 (2006) DLT 265.
12. Having heard the rival contentions of the Ld. Counsel for the parties, it is to be seen that petitioner has been quite categorical about the extent of residential accommodation available with him and it is two rooms, one kitchen and two latrine-bathroom on the first floor of the property in question. It is an admitted fact that family of petitioner consists of himself, his wife and his son. Therefore, for the purpose of residence, requirement of one room for the petitioner and his wife, one room for his son, one room as a drawing cum E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 10 of 12 //11// dinning room, one room as a puja room and one room as a guest room is a bona fide requirement. Even if, believing for a moment that petitioner has three rooms on the first floor, then also his requirement of rooms for his residence and of his family members would not be met. Furthermore, petitioner has also pleaded that his wife who is aged about 56 years is suffering from various ailments which prevents her in climbing the stairs. A number of medical documents which includes various reports were also filed by the petitioner in support of his said plea. I am of the considered view that even in the absence of any medical document, the advancing age of the petitioner and his wife is more than sufficient to believe their bona fide requirement of the tenancy premises which is at the ground floor for the purpose of their residence. It was held in Dev Raj Bajaj Vs. R.K.Khanna, 1996, RLR, 125 that where the landlord and his wife were old aged then this fact alone is sufficient for eviction of the tenant from the ground floor. A landlord can ask for ground floor for his convenience and comfort for his health. Insofar as the requirement of the petitioner of one room for his consultancy office is concerned, merely because no scheme or details of his consultancy business having been provided, it cannot be said that his requirement is to be disbelieved or rejected. Petitioner has placed on record copy of a certificate of his retirement issued by the Airport Authority of India. Perusal thereof would go on to show that petitioner has retired as Dy. Gen. Manager (Electrical) with a pay scale of Rs. 36,600-62,000/- with last drawn basic pay of Rs. 51,210/-. The rank and the pay of the petitioner is such which in itself is sufficient to believe that petitioner has the necessary competence and the skill to start his consultancy office. Merely because petitioner is drawing a monthly pension amount of Rs. 30,000/- or above, it E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 11 of 12 //12// cannot be said to be any bar in the petitioner's intention to start his consultancy office so as to earn additional income. Thus, requirement of one room by the petitioner for his consultancy office is also a bona fide requirement. Thus, in all, petitioner requires six rooms for the purposes of his residence and this in itself makes out a case of bona fide requirement of the tenancy premises by the petitioner for its use as a residence. As the existing residential accommodation available with the petitioner is much less, it cannot be said to be a case of additional accommodation. Thus, petitioner succeeds in prima facie establishing his case of bona fide requirement of the tenancy premises for its use as a residence and that he has no other alternative suitable accommodation available with him.
13. In view of the foregoing, it is held that respondents have failed to raise any triable issue and as such their application seeking leave to defend is dismissed. An eviction order u/s 14 (1) (e) r/w Section 25-B of the DRC Act is accordingly passed in favour of the petitioner and against the respondents in respect of the tenancy premises which is one shop measuring 6 ½ X 9 ½ situated at ground floor of 11881/1, Street no. 10, Sat Nagar, Karol Bagh, New Delhi-110005 more specifically as shown in red in the site plan filed with the eviction petition. It is made clear that petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.
File be consigned to Record Room.
(Announced in the open court on 30.08.2013) (Satish Kumar Arora) ARC-1/Central/Delhi Tis Hazari Courts E-30/12 Bansi Lal Vs. Kamal Kishore & Anr Page 12 of 12