Delhi District Court
Hazari Courts vs Union Of India Bearing on 4 November, 2011
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS
HAZARI COURTS, DELHI.
E68/10
04.11.2011
Sh. Sudhakar Singh
Vs.
Smt. Sunita Bajaj
ORDER
By this order I shall dispose of an application u/s 25 B (4) of DRC Act filed on behalf of the respondent. The present petition was filed by the petitioner u/s 14 (1) (e) r/w section 25 B of the DRC Act on the ground of bonafide requirements. The brief facts of the case are that the petitioner is the owner of the suit premises bearing no. E16/927, Ganesh Gali, Tank Road, Bapa Nagar, Karol Bagh, New Delhi, which is commercial property, consisting of seven shops at the ground floor and one shop/hall at the first floor under the occupancy of different tenants. The respondent is an old tenant in respect of one shop measuring 7' X 16' at ground floor in the suit premises which is being used for the trading of readymade garments. The petitioner alongwith his wife had been running a partnership firm in the name and style of M/s V.Bilani Prabhu Singh dealing in skinning of hides of dead animals, salting, storing and curing of animal skin etc. at a rental accommodation bearing E68/10 Page 1 of 15 //2// property no. 11024, Motia Khan, Gali Pipal Wali, New Delhi110055. The said trade/business of salting skin was prohibited by the Hon'ble Supreme Court in the case titled Buffalo Traders Association Vs. Union of India bearing I.A.No.19 in C.A. No. 3769/1996. As a result of which, the MCD issued closure notice to the petitioner u/s 407 (2), 417, 423 of DMC Act. Subsequently the said tenanted premises was sealed by the MCD. The petitioner was in occupation of approximate 540 sq. yards in the said tenanted premises using the same for said business. The MCD had also discontinued renewal of license of the petitioner's firm. Therefore, the petitioner suffered statutory closure of his only business. Hence the petitioner required the tenanted shop for his own business purpose as he is intending to open a showroom of leather and other garments at the entire ground floor of suit premises and also to use the first floor premises for godown purposes to store the articles of garments etc. and the petitioner has no other reasonably suitable accommodation except the suit premises.
2. Leave to defend application alongwith affidavit filed on behalf of the respondent wherein he denied that the petitioner is owner of the suit shop. It is stated that the land on which the suit shop is situated belongs to the DDA and DDA till date has not transferred the said land to any individual. It is E68/10 Page 2 of 15 //3// further stated that since 1959, the suit shop has been in occupation of Sh. Bhagwan Singh, Harbhajan Singh, Prabhu Dayal son of Sh. Devi Ram, Bhagwan Dass, Gulab Singh, who have nothing to do with the petitioner. It is further stated that the receipts qua the payment of rent being issued to the respondent depicting one Sh. Gurcharan Singh as the landlord of the suit shop, and sometimes Sh. Joginder Singh, however, w.e.f April, 2008 with malicious and cunning intents, the petitioner showed himself as a landlord of the suit shop. It is further stated that the electricity and water bills are till date being generated in the name of one Gurcharan Singh. It is denied that the petitioner's business of dealing in skinning of hides and dead animals, salting, storing, curing etc. of animal skin has been closed down/sealed. It is stated that respondent himself has visited the said premises at 11024, Motia Khan, Delhi and has ascertained that the said business is continuously and uninterrupted being run there even on the date of filing of the present petition and in addition to the above shop, the same business is being run by the petitioner and his family members in other premises also. It is further stated that the petitioner and his wife apart from the commercial complex housing the suit shop are also joint owners of another shopping complex known as Baswala Complex situated at E16/929, Main Tank Road, Bapa Nagar, Karol Bagh, New Delhi which is at a stone's throw away from the suit shop. The E68/10 Page 3 of 15 //4// said complex is jointly owned by the petitioner, his wife, Sh. Joginder Singh and his wife. The said commercial complex consist of five floors and has thirty four shops and four huge halls, all belonging to the said owners. It is further stated that in addition to the above, the petitioner also is the exclusive and joint owner of various other commercial and residential properties, the details of which are as under :
(i) Commercial property having shops situated at 16/919, Main Tank Road, Bapa Nagar, Karol Bagh, Delhi.
(ii) Commercial property having shops situated at 16/924, Main Tank Road, Bapa Nagar, Karol Bagh, Delhi.
(iii) One commercial complex having 8 to 10 shops in Jawalapuri, Paschim Vihar, Delhi consisting of two commercial plots of land, allotted to the petitioner in 1982 by the then Lt. Governor of Delhi. It is also important to mention here that the market in which the said complex is situated is a renowned PVC market.
(iv) A huge residential cum commercial building consisting of four floors at AM22, Shalimar Bagh, Delhi.
3. It is further stated by the respondent that the property no. E16/927 in which the suit shop is situated is itself a huge shopping complex which has E68/10 Page 4 of 15 //5// two constructed floors. The ground floor of the said complex has seven shops in which one of the shop i.e the suit shop is in possession of the respondent since 1983. On the first floor of the said complex, there are three shops. One shop has been rented out by the petitioner in the year 2007 to M/s Pahwa Sons at a monthly rent of Rs. 10,000/. Further, on the ground floor, also in the year 2006, two shops were got vacated by the petitioner from the old tenants and consequently the same have been rented out to M/s Guru Nanak Garments and M/s Jana Merchand Company respectively at a monthly rent of Rs. 15,000/ each. If the petitioner has any such need to open or run a business of having a showroom of garments, then he can open the same in any of the various shops available to the petitioner mentioned above.
4. Reply to the leave to defend application filed on behalf of the petitioner wherein he denied that the land on which the suit shop is situated belongs to DDA. It is stated that the suit property is an ancestral property in occupation of the petitioner/family members even before DDA came into existence. It is further stated that the father of the petitioner has been in occupation of this property followed by the eldest brother of the petitioner namely Gurcharan Singh in his capacity as Karta of the family. Subsequently, by virtue of family settlement the suit property fell to the share of the petitioner. As such the E68/10 Page 5 of 15 //6// electricity and water bills by necessary implication have been in the name of his elder brother namely Sh. Gurcharan Singh. Similarly, even if few receipts are executed by one brother on behalf of the other brother of the suit property is not unusual more so when all of them have been maintaining a joint family. It is further stated that the MCD has sealed the portion of the premises meant for storing/godown of skin in terms with direction of the Hon'ble Supreme Court delivered in W.P. © No. 2802/04 titled as Mohd. Amzad Vs. UOI leaving only the office portion which is hardly 8' X 10'. It is denied that the petitioner and his wife are the joint owners of another shopping complex known as Bus Wala Complex at 16/929, Main Tank Road, Bapa Nagar, Karol Bagh, New Delhi. It is stated that the said premises fell to the share of the elder brother of the petitioner i.e Joginder Singh as per family settlement who is the exclusive owner of the said property. It is denied that the petitioner has alternative shops in the form of property no. 16/929, Tank Road, Bapa Nagar, Karol Bagh, New Delhi. It is further denied that the petitioner is owner or entitled to commercial property bearing no. 16/919, Tank Road, Bapa Road, Karol Bagh, New Delhi. The said property belongs to Sh. Joginder Singh, elder brother of the petitioner. It is further denied that the petitioner is owner of the commercial property bearing no. 16/924, Tank Road, Bapa Nagar, Karol Bagh, New Delhi. It is stated that the property bearing no. 16/919 and 16/924 E68/10 Page 6 of 15 //7// are the same property having opening towards both sides of the road/gali and as such two different numbers given by the Municipal authority. It is denied that the property bearing no. AM22, Shalimar Bagh, Delhi is of residential cum commercial nature. It is further denied that in the year 2006, the petitioner got vacated two shops from the old tenants and the same has been rented out to M/s Gurunanak Garments and Jana Merchant Company at a rent of Rs. 15,000/. It is stated that the shop at the ground floor bearing no. 1 and 2 were got vacated in the year 2004 from M/s Srichand Sindhi which was let out to the present tenant M/s Gurunanak Garment in the year 2004 itself who had already agreed to vacate the shop by the end of 31.03.2009. It is denied that the M/s Jana Merchant Company is also a tenant at the ground floor. Both portions of the shop are in possession of Guru Nanak Garment.
5. Arguments heard. Record perused and considered.
6. Ld. counsel for the petitioner relied upon the following rulings :
(i) Krishan Kumar Gupta Vs. Swadesh Bhushan Gupta, 152 (2008) DLT
556.
(ii) T.B.Jain (Shri) Vs. Smt. Savita Ravi & Anr., 2008 VI AD (Delhi) 103.
(iii) Vinod Kumar Verma Vs.Manmohan Verma Anr., 148 (2008) DLT 580. E68/10 Page 7 of 15
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(iv) Kamla Rani and Ors. Vs. M/s Texmaco Ltd., AIR 2007 Delhi 147.
(v) A.K.Nayar Vs. Mahesh Prasad, 153 (2008) DLT 423.
(vi) Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) DLT 383.
(vii) Rakeshwar Narain Vs. Sarla Sarin, 1992 RLR 18.
(viii) Kanwal Kishore Chopra Vs. O.P.Diwedi and another, AIR 1978 Delhi
53.
(ix) R.C.Tamrakar and another Vs. Nidi Lekha, (2001) 8 Supreme Court Cases 431.
(x) Sudesh Kumari Soni & Anr. Vs. Prabha Khanna & Anr., 153 (2008) Delhi Law Times 652.
(xi) Smt. Waryam Kaur Vs. K.K.Gandhi (since deceased) through his LRs, 1987 (2) RCR 553.
(xii) Jeewan Kumar Khanna Vs. Ajudhia Pershad Murgai and Ors., 1988 (1) RCR 224.
7. Ld. counsel for the respondent relied upon the following rulings :
(i) Inderjeet Kaur Vs. Nirpal Singh, 2001 (1) SCC 706.
(ii) Manoj Kumar Vs. Bihari Lal, 91 (2001) DLT 25 (SC).
(iii) Liaq Ahmed Vs. Habib ur Rehman, 2000 (5) SCC 708.
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(iv) Charan Dass Vs. Brahma Nand, 21 (1982) DLT 378.
(v) Ramesh Kumar Vs. Rani Ravindran, JT 2009 (8) SC 421.
(vi) Precision Steel Vs. Prem Deva Niranjan, 22 (1982) DLT 458 SC.
8. The present petition has been filed u/s 14 (1 ) (e) r/w section 25B of DRC Act and in order to succeed in such a petition, petitioner has to prove (i) Ownership of the suit premises; (ii) Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
Ownership & Purpose of letting
9. The respondent contended that the petitioner is not the owner of the suit premises and the land on which the suit premises is situated belongs to DDA. It is further contended that since 1959 the shop in question was in occupation of various persons who have nothing to do with the petitioner and the respondent paid the rent to Sh. Gurcharan Singh and Joginder Singh as the landlord of the suit premises. The petitioner has also started taking rent from April, 2008. On the other hand the petitioner stated that the suit property is an ancestral property which was in occupation of the family members of the petitioner even before the existence of DDA. After the father of the petitioner, E68/10 Page 9 of 15 //10// his elder brother Sh. Gurcharan Singh came in possession of the suit property as Karta of the family and subsequently by virtue of family settlement the suit property fell into the share of the petitioner. It is not in dispute that the respondent has paid the rent of the suit premises to Sh. Gurcharan Singh and Sh. Joginder Singh who are brothers of the petitioner. The respondent has also paid rent to the petitioner from April, 2008 .The respondent has merely denied the ownership of the petitioner. However, not disputed the relationship of landlord and tenant between the parties. As the respondent has been paying rent to the petitioner, therefore, he is estopped u/s 116 of Indian Evidence Act to challenge the ownership of the petitioner.
10. It is well settled law that a landlord is not required to prove absolute ownership as required under the Transfer of Property Act. It is held in Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that, "It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the E68/10 Page 10 of 15 //11// owner howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly".
11. So far the purpose of letting is concerned, after the judgment of the Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable on the ground of bona fide requirement in respect of the property which were let our for commercial purposes. Hence the ingredients of ownership and purpose of letting are decided in favour of the petitioner.
Alternative accommodation & bonafide requirement
12. The respondent contended that the petitioner and his wife are owner of E68/10 Page 11 of 15 //12// a shopping complex known as Baswala Complex situated at E16/929, Main Tank Road, Bapa Nagar, Karol Bagh, New Delhi. This complex has five floor which are having 34 shops and four huge halls. The respondent further contended that the petitioner is also owner of property bearing no. 16/919, 16/294, Main Tank Road, Karol Bagh, New Delhi a commercial complex having 8 to 10 shops in Jawalapuri, Paschim Vihar, Delhi and a huge residential cum commercial building consisting of four floors at AM22, Shalimar Bagh, Delhi. The respondent further contended that the suit property in question having 7 shops on the ground floor and three shops on the first floor.
13. On the other hand the petitioner stated that the shops in complex known as Buswala Complex fell to the share of his elder brother namely Joginder Singh as per family settlement and he is exclusive owner of the said complex. Petitioner denied that he has shops in property no. 16/929 and 16/919, Tank Road, Karol Bagh, New Delhi. Both the property belongs to Sh. Joginder Singh. It is further stated that property no. 16/919 and 16/924 is the same property opening towards both the sides of the road/gali, therefore, two different numbers given by the MCD. It is also denied that the property no. AM22, Shalimar Bagh is residential cum commercial in nature. According to E68/10 Page 12 of 15 //13// the petitioner the buswala complex at property no. 16/929 and property no. 16/919 and 16/924 are owned by his brother Sh. Joginder Singh as the same fell to his share in the family settlement in the year 1987 and the property in question i.e the property bearing no E16/927, Tank Road, Karol Bagh, New Delhi fell to the share of the petitioner. The respondent has filed copy of electricity bill dated 04.06.2008 and water bill dated 13.03.1997 of suit property bearing no. 16/927, Bapa Nagar, Karol Bagh, New Delhi in the name of Charan Singh. The respondent has also filed the copy of electricity bills dated 04.06.2008 in the name of Shalini Singh and Mala Singh qua the property no. 16/929. The question arises, if under the family settlement the property in question fell to the share of the petitioner then why the electricity and water connection were continued in the name of Charan Singh till the year 2008. Similarly when the property no. 16/929, Bapa Nagar, Tank Road, Karol Bagh fell the share of Joginder Singh then why electricity meter continued in the name of Smt. Mala Singh wife of the petitioner till 2008. It raises a triable issue whether the petitioner has no concern in property no. E16/929. According to the petitioner the property no. 16/924 and 16/929 is one property towards both sides of gali/road but MCD has given its two numbers. I am of the considered view that it is also a triable issue whether it is a single property or two separate properties. Hence, the ingredients of E68/10 Page 13 of 15 //14// alternative accommodation is decided in favour of the respondent and against the petitioner.
14. So far the bonafide requirement of the petitioner is concerned, the respondent has contended that the petitioner has rented out one shop from the suit property in the year 2007 to M/s Pahwa and Sons at a monthly rent of Rs. 10,000/ and two shop on the ground floor were got vacated by the petitioner in the year 2006 and relet out the same to M/s Guru Nanak Garments and M/s Jana Merchant Co. respectively at a monthly rent of Rs. 15,000/ each. In reply to it the petitioner denied that two shops were got vacated and rented out as stated by the respondent. According to the petitioner the shop at ground floor were got vacated in the year 2004 from M/s Srichand Sindhi, old tenant which were let out to M/s Guru Nanak Garments in the year 2004 who had agreed to vacate the shop by the end of 31.03.2009. It is not in dispute that two shops on the ground floor were got vacated by the petitioner, however there is dispute regarding the year in which the same were got vacated. According the petitioner the said shops were got vacated in the year 2004 and relet out in the same year whereas according to the respondent the said shops were got vacated in the year 2006 and let out in the same year. According to the petitioner he received a E68/10 Page 14 of 15 //15// letter from the MCD in the year 2005 to close down his business of storage and salting of skin (hide) and his license was also not renewed and his application was cancelled vide order/letter dated 10.02.2006. I am of the considered view that it is a triable issue whether the petitioner has relet out the two shops in the year 2004 or 2006. The rulings relied upon by the Ld. Counsel for the petitioner are not applicable at this stage to the facts of the present case.
15. In view of the above discussions the respondent has succeeded to raise triable issue regarding the alternative accommodations and bonafide requirement of the petitioner, therefore, the leave to defend application filed by the respondent is allowed to the extent of alternative accommodation & bonafide requirement only.
(Announced in the open court
on 04.11.2011) (Pritam Singh)
ARC/Central/Delhi
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