Delhi District Court
Jamiat Trust Society vs Md. Shafique Siddiqui on 19 September, 2023
New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui
In the Court of Ms. Neetu Nagar: Additional Rent Controller-02
Central District, Tis Hazari Courts, Delhi.
E-84/2019
New No. 610/2019
In the matter of:
1. Jamiat Trust Society
1501-1515, Ward No. 6
Jamiat Building, Gali Qasim Jan
Ballimaran, Delhi-110006
through its Authorized Signatory
Mr. Md. Ziaullah
2. Jamiat Ulema-I-Hind
1, Bahadur Shah Zafar Marg,
New Delhi-110002
through its Delhi Unit Secretary
3. Md. Ziaullah
R/o 1502, Ward No. 6
Jamiat Building, Gali Qasim Jan
Ballimaran, Delhi-110006
................... Petitioners
VERSUS
Md. Shafique Siddiqui
Shop on ground floor in
property no. 1501-1515
Jamiat Building,
(NEETU NAGAR)
ARC-02 (Central), THC,
19.09.2023 Page no. 1 of 32
New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui
Gali Qasim Jan, Ballimaran,
Delhi-110006
......................Respondent
Date of institution of the case : 19.08.2019
Date on which Judgment reserved : 16.08.2023
Date on which Judgment pronounced : 29.08.2023
Decision of petition : Allowed
PETITION FOR EVICTION OF TENANT UNDER SECTION
22 OF THE DELHI RENT CONTROL ACT.
JUDGMENT
1. This is a petition under section 22 of the Delhi Rent Control Act, 1958 (Act 59 of 1958) for recovery of possession of premises i.e. 1501-1515, Ward no.6, Jamiat Building, Gali Qasim Jan, Ballimaran, Delhi-06 as shown in colour red in the site plan attached with the application.
FACTS OF PETITION
2. As per contents of the petition, the petitioners no.1 and 2 are public institutions comprising of Muslim Divines and dedicated to social, cultural, educational and religious upliftment of the muslims at large. The petitioner no.1 is registered under Societies Registration Act, 1860 and entrusted to administer, manage and supervise all properties of petitioner no.2. Petitioner no.3 is empowered by petitioners no.1 and (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 2 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui 2 being juristic persons to file the present petition and to sign and verify the present petition in his own name on their behalf by means of resolution of the governing body dated 28.02.2006. It is submitted that petitioner no.1 is the owner of the tenanted premises. 2.1 It is stated that the respondent was inducted as tenant in respect of premises consisting of a big hall measuring 30'X30' on ground floor (in short "tenanted premises") in the said premises for commercial purposes and the petitioner no.1 through its authorized signatory used to issue rent receipts against the rent received from the respondent. The respondent lastly paid the rent on 27.11.2018 vide receipt no.475 for the period w.e.f. November 2017 to November 2018 on a monthly rent of Rs.847/- totalling Rs.11,011/- only. After the service of the notice and before filing of the application for permission before the Competent Authority, Slum, the respondent illegally deposited a sum of Rs.5,082/- in the account of the petitioner no.1 on 25.02.2019 in cash, maintained in Bank of India, Humdard Dava Khana Branch, Delhi-06, purportedly the rent for the period w.e.f. December 2018 till June 2019 came in the knowledge of the petitioners when the respondent filed his written statement dated 20.05.2019 before the Competent Authority, (Slum) Delhi on 03.06.2019. Respondent has not paid the rent from December 2018 till date.
2.2 It is further submitted that respondent is running printing press in the name and style of M/s Irani Offset Press and M/s Kehkashan Graphics. Moreover, the respondent has sub-let, assigned (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 3 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui and parted with the possession of the part of tenanted premises to one Hakeem Salman Shafique Siddiqui, who has started his Hijama Clinic under the name and style of Kubra Hijama and Leech Centre from the tenanted premises, without obtaining the consent in writing from petitioner no.1. Further, the respondent has also caused substantial damages to the tenanted premises by adding mezzanine floor in it without obtaining the consent from the petitioner no.1 in writing. Resultantly, tenancy was terminated vide legal notice dated 12.02.2019 sent to the respondent and liable to pay a sum of Rs. 7,623/- as rent for the period w.e.f December, 2018 till date.
2.3 It is stated that the petitioner no.1 being a public institution started diagnostics center under the name and style of MESCO Diagnostics Center in the vacant portion of the said premises available to it in which the public at large is being provided with various kinds of medial facilities at no profit no loss basis. The area available to the petitioner no.1 is falling short to cater to the needs of the medical facilities of the local residents and therefore, the same is causing hardship to them. The petitioners filed an application under Section 19 of the Slum Area (Improvement and Clearance) Act 1956 and the same was allowed by the Competent Authority, Slum vide Order dated 07.08.2019. Hence, the present petition.
FACTS OF WRITTEN STATEMENT
3. The petition is contested by the respondent by way of (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 4 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui written statement of defence wherein preliminary objections are taken to the effect that the petition not filed by a duly authorised person; no valid authorization in favour of petitioner no.3; petitioners are not owners of the premises in question; no valid resolution was ever passed by a duly constituted committee to institute petition for eviction of tenant; alleged resolution dated 28.02.2006 is not valid; trustees cannot delegate power and all the trustees are required to sign, verify and file the legal proceedings.
3.1 It is submitted that trust itself is not a legal entity. The petitioner no.1 the alleged Jamiat Trust Society has no concern with the petitioner no.2. The petitioners have not filed on record any document showing the ownership of property in dispute. 3.2 It is stated that the petitioners have concealed that the property in question is a three storey constructed building and parts and portions available with the petitioners and portion in possession of the tenant or tenants and thus, are guilty of suppression of facts. 3.3 It is submitted that the petitioners have not disclosed as to how many properties are available with them as owners or under its management. The site plan filed on record is incorrect. The mezzanine floor which was in existence at the time of letting has not been shown in the site plan. It is submitted that no one has been appointed as Mutawalli.
3.4 It is stated that the rent stood paid till March, 2020. Respondent admitted the fact that the premises were let for commercial (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 5 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui purposes and from the date of inception of the tenancy, the same is being used for the purpose of running of printing press. The respondent is holding valid licence for his business activity. 3.5 It is submitted that Salman Shafique Siddiqui is the son of the respondent who is helping the respondent in carrying out the business being run by the respondent. Even otherwise, any work being done by the son under the supervision of the father cannot be termed as subletting and the respondent is in actual, physical possession of whole of the tenanted premises and there is no sub-letting. 3.6 It is submitted that other than the respondent, there is only one tenant on the ground floor in a small portion adjacent to stairs leading to first floor, on first floor only three small rooms are in occupation of tenants and rest of the entire first floor as well as second floor is available to the petitioners. The petitioners are having much more accommodation available to them and large part of it is lying unutilized. Therefore, the need of the petitioner cannot be said to be bone fide from any angle. The respondent is a man of ordinary means and is running his business of printing from the tenanted premises which is his only source of livelihood. Rest of the averments of the petition have been denied in toto and it has been prayed for dismissal of the present petition.
REPLICATION
4. Replication/rejoinder has been filed by the petitioner to the (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 6 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui written statement of the respondent, wherein the averments made in the petition have been reiterated whereas the defence taken by the respondent in the written statement is traversed. It is submitted that the petitioner no.1 is a society and not a trust as alleged.
EVIDENCE OF PETITIONERS
5. In support of its case, the petitioners got examined authorised signatory i.e petitioner no.3 PW1 who tendered affidavit Ex.PW1/A in his evidence and relied upon following documents in his evidence :-
Exhibits Title of documents
Ex. PW-1/1 Copy of registration certificate of the petitioner
no.1
Ex. PW-1/2 Abstract of Executive meeting dated 28.02.2006
along with its English translation
Ex. PW-1/3 Counter file of rent receipt along with its English
translation
Ex. PW-1/4 Legal notice dated 12.02.2019 along with postal
receipt dated 12.02.2019
Ex. PW-1/5 Reply dated 22.03.2019 received from the
respondent
Ex. PW-1/6 Certified copy of order dated 07.08.2019 passed
by the Competent Authority (Slum).
Ex. PW-1/7 Site plan of the tenanted premises.
(NEETU NAGAR)
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New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui
5.1 Thereafter, evidence of petitioner was closed vide order
dated 17.11.2021.
EVIDENCE OF RESPONDENT
6. Respondent has examined himself as RW1 who tendered affidavit Ex.RW1/A in his evidence and relied upon following documents in his evidence :-
Exhibits Title of documents Ex. RW-1/B Site plan 6.1 Thereafter, evidence of respondent was closed vide order dated 29.04.2022. 6.2 Further, in addition, respondent has further tendered
document i.e record of settlement dated 05.06.2022 vide Ex. RW-1/C (colly).
ARGUMENTS
7. I have heard the rival contentions raised by the learned counsel for both the parties who have argued as per their respective case and their arguments need not be reproduced for the sake of brevity. I have also gone through the case file carefully and minutely.
REASONING AND ANALYSIS (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 8 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui
8. Before proceeding further, it is necessary to reproduce Section 22 of DRC Act which reads as follows:
"22.Special provision for recovery of possession in certain cases Where the landlord in respect of any premises is any company or other body corporate or any local authority or any public institution and the premises are required for the use of employees of such landlord or in the case of a public institution, for the furtherance of its activities, then, notwithstanding anything contained in section 14 or any other law, the Controller may, on an application made to him in this behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied--
(a) that the tenant to whom such premises were let for use as a residence at a time when he was in the service or employment of the landlord, has ceased to be in such service or employment; or
(b) that the tenant has acted in contravention of the terms, express or implied, under which he was authorised to occupy such premises; or
(c) that any other person is in unauthorised occupation of such premises; or
(d) that the premises are required bona fide by the public institution for the furtherance of its activities.
(NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 9 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui Explanation.--For the purposes of this section, "public institution" includes any educational institution, library, hospital and charitable dispensary [but does not include any such institution set up by any private trust]."
9. In the present case, the petitioner has filed the present petition under section 22 of DRC Act. The provisions of Section 22 are applicable only to company, body corporate, local authority or public institution. As per the explanation given in this Section "public institution" includes any educational institution, library, hospital and charitable dispensary. It is not in dispute that petitioner no. 1 and 2 are dedicated to social, cultural, educational and religious upliftment of the Muslims at large and petitioner no.1 is a society registered under the Societies Registration Act. The aims and objectives of the petitioner society makes it clear that it falls within the definition of 'public institution' as given under section 22 of DRC Act. The Hon'ble High Court in a judgment reported as "Chunni Lal Vs. University of Delhi, 1977 RCR 742" has held that :
"The relationship of sections 14 and 22, is that all landlords are able to apply under section 14 but only the landlords who are corporate bodies or public institution are entitled to apply under section 22. This necessarily means that such corporate and public institution landlords have been given the ordinary grounds under section 14 and additional grounds (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 10 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui under section 22. This accords with their position of being primarily similar to natural persons and sometimes being different from them, that the corporate and public institution landlords are entitled to the ordinary grounds of eviction under section 14 like other landlords and also to the special grounds of eviction under section 22 which are peculiar to the corporate and public institution landlords and that section 22 does not deprive the corporate and the public institution landlords from the benefit of section
14."
10. In view of above stated judgment of Hon'ble High Court, it is clear that the grounds available to the corporate body and public institution under section 22 of DRC Act are in addition to the grounds available to them under section 14 of DRC Act.
11. As per the case of the petitioners, the petitioner no. 1 is entrusted to administer, manage and supervise all properties of Petitioner no. 2. Further, petitioner no. 3 is empowered by petitioners no. 1 and 2 being juristic persons to file the present petition and to sign and verify the petition in his own name on their behalf by means of resolutions of the governing body dated 28.02.2006. It is further stated that petitioner no. 1 is the owner of the tenanted premises. To support these facts, petitioners proved the copy of registration certificate of the petitioner no. 1 in evidence vide Ex. PW1/1 and abstract of executive (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 11 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui meeting dated 28.02.2006 along with its English translation Ex.PW1/2 whereunder petitioner no. 3 was authorised to file the present petition for eviction of tenants from the tenanted premises. There is nothing on record if the said documents are false and forged. Hence, in view of resolution there was no requirement to file any attorney in favour of respondent no.3.
12. At this juncture, it is pertinent to mention here that the Hon'ble Apex Court in case titled as "Shanti Sharma & Ors. Vs. Ved Prabha & Ors.", AIR 1987 SC 2028 had held that:-
"The word 'owner' has not been defined in this Act and the word 'owner' has also not been defined in the Transfer of Property Act. The contention of the learned counsel for the appellant appears to be is that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State and in this view of the matter it could not be thought of that the Legislature when it used the term 'owner' in the provision of Sec. 14(1)(e) it thought of ownership as (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 12 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for protection of the tenants. But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove is bona fide requirement and that he is the owner thereof, In this context, what appears to be the meaning of the term 'owner' is vis-a- vis the tenant i.e. the owner should be something more than the tenant."
13. Same was the ratio of decision given in "Jiwan Lal Vs. Gurdial Kaur & Ors." 1995 RLR 162.
(NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 13 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui
14. The abovesaid judgments were further followed in case titled as "Rajender Kumar Sharma & Ors. Vs. Leela Wati & others, 155 (2008) DLT 383".
15. Further, the Hon'ble High Court of Delhi made important observations in the decision given in the case titled as "Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450", wherein it has been held 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 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 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 (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 14 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui estoppel 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........"
16. Therefore, by virtue of Section 116 of Indian Evidence Act, 1872, a tenant is estopped from challenging/questioning the ownership of the landlord during the subsistence of tenancy especially when the respondent has admitted his tenancy in his pleadings or testimony. Further, Section 114 of Indian Evidence Act is very clear which states that the court may presume the existence of any fact which it thinks to have happened and the regard being had to the common course of natural events, human conduct and public and private business.
17. RW1 has himself admitted that he has been paying rent to petitioner no. 3 which is being received by him on behalf of petitioners no. 1 and 2. After having started paying rent to the Landlord, it is now not open for the tenant to turn around and challenge the title of the landlord. Reference can be made in this regard to case titled as Department Of Posts & Ors vs Surinder Babu Jain, 2022 SCC OnLine Del 1565.
18. It is highly unlikely that the respondent was paying rent to petitioner no. 3 without knowing or believing that he had the authority to collect the rent on behalf of the petitioners no. 1 and 2. Moreover, no (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 15 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui prudent person would pay the rent to another person until and unless he/she accepted that person as a landlord. Therefore, it is clearly established by the conduct of the respondent in paying rent to petitioner no.3, that he accepted the authority of petitioner no. 3 to collect the rent on behalf of petitioners no. 1 and 2 and accordingly, attorned petitioners no. 1 and 2 as the landlords.Even otherwise, the petitioners have duly proved rent receipt in Urdu and its English translation vide Ex.PW1/3 wherein the name of petitioners no.1 and 2 has been clearly mentioned as it begins with the words "under the care of Jamiat Trust Society". It further states that "Receipt of rent of property of Jamiat Ulema-E- Hind". Further, the above said rent receipt has been duly signed by petitioner no.3 as rent collector as well as the present respondent. Hence, it is amply clear that the petitioners no.1 and 2 are the landlords of the tenanted premises. It is not even the case of the respondent that the said rent receipt is false or forged. Hence, it is not open to the respondent to challenge the title of the petitioner. Reference can be also made to case titled as Ambika Savaria & Ors. Versus Sanjay Sharma & Ors., decided on 09.08.2016 wherein it was observed as follows:
"11.Doctrine of tenant's estoppel" which governs the relationship of landlord and tenant is founded on a contract of tenancy entered into by them, is well settled. Jessel, M.R., who adverted to that doctrine in Stringer's Estate, Shaw v. Jones-Ford, LR 6 Ch D 1:37 LT 233 (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 16 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui explains it thus: "Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title...That is a perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title. That is a well-established doctrine. That is estoppel by contract.
Indeed, the said doctrine of tenant's estoppel, finds statutory recognition in Section 116 of the Indian Evidence Act, 1872, for short 'the Evidence Act', in that, it states that "no tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property"
19. Hence, once landlord-tenant relationship is established, the tenant is bound by estoppel as laid down under Section 116 of Indian Evidence Act. Therefore, even though no title document has been filed by the petitioners qua tenanted premises or it has been stated as contrarily that petitioner no.1 is the owner and that petitioner no.2 is (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 17 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui the owner at different places in the pleadings but there exists relationship of landlord and tenant between the petitioners no.1 and 2 and the respondent and the petitioners no.1 and 2 are owners of the tenanted premises for the purpose of Delhi Rent Control Act only.
20. The next contention of the respondent is that the petitioners have not filed correct site plan. It has been held in Rishal Singh Vs. Bohat Ram, (2014) 144 DRJ 633 that when the tenant controverts the accuracy of site plan filed by the respondent, he is required to file a copy of site plan he believes to be correct so as to guide the court in finding the discrepancies of the site plan filed by the landlord; without such site plan, mere contentions will be considered meritless.
21. Similarly, the Hon'ble High Court of Delhi in "Satish Kumar Vs. Subhash Chand Aggarwal, 2012 SCC Online Del 4447 (SLP © No. 27341/2012)" has held that if a tenant does not file his site plan showing the site plan filed by the owner is incorrect, then, the site plan filed by the owner would be assumed to be true. In the present matter also, no such site plan has been filed by the respondent. Therefore, he has no right to question the site plan filed by the landlord to be incorrect. Hence, in view of the judgments and observations made above, this contention of the respondent is vague and untenable.
22. At this stage, it is also important to reproduce relevant revisions of the Societies Registration Act, 1860 which reads as follows:
(NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 18 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui "Section 6. of The Societies Registration Act, 1860-
Suits by and against societies.--Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion.
23. Further, section 16 reads as follows:
Section 16. Governing body defined.--The governing body of the society shall be the governors, council, directors, committee, trustees or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.
24. It was contended by the respondent that the petitioner being trust, the petition is required to be filed, signed and verified by all the trustees. It was also submitted that the petitioner is a trust society and all the trustees are necessary parties.It was highlighted by learned counsel for the respondent that it has been mentioned in the document dated 28.08.2006 that the meeting is for pursuing the cases on behalf of trust. Concededly, the word "Trust" has been used therein. To my mind, the document has to be read in whole and not by isolating one word as suggested by learned counsel of respondent. It has been clearly mentioned therein that it is a Trust Society and not simplicitor (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 19 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui trust and hence, there was no requirement that the present petition should have been filed by all the trustees. It is not the requirement of law that the society registered under Societies Registration Act is also to sue as trust but if a trust has been registered under the provisions of Societies Registration Act then legal proceedings would be covered by the provisions of Societies Registration Act and not the rules applicable to the trust. Hence, the society need not to be sued through board of trustees and court has to see as to whether the petitioner society is registered as society or trust. Herein, the petitioner has relied upon the certificate of registration of society Ex.PW1/1 issued under Societies Registration Act and for the purpose of filing this petition has clearly established that this is a society and not a trust and thus provisions of Societies Registration Act will be applicable. The petitioner No. 1 is a society and can sue and can be sued in its own name and the instant petition is maintainable.Hence, argument of the respondent in this regard totally fails. The other contentions in order to challenge the executive meeting dated 28.02.2006 are also meritless in view of the admission of the respondent wherein he has himself acknowledged as well as attorned the relationship of landlord and tenant between the respondent and the petitioner.1 and 2. It is also to be noted that the present petition is not regarding the disputes between the members of the trust society inter se and hence, the documents pertaining to the trust i.e. annual meeting register, constitution thereof or list of members (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 20 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui or any other register pertaining to the society was neither necessary nor required as urged by counsel of respondent.
25. Furthermore, the contention on behalf of the respondent that nothing is brought on record to show that registration of society is valid presently is also vague as onus to prove the same was on the respondent but he failed to bring anything to prove that the registration has expired or cancelled. Moreover, the license of the respondent has itself expired as admitted by him in his cross-examination. Hence, the contentions of the respondent in this regard is also devoid of any merit.
26. In the present case, it is not specified in the petition whether it is based on grounds (a), (b), (c) or (d) of Section 22 of DRC Act. However, from the pleadings of the petitioner and averments made in the petition it is clear that the petitioner has made the averments regarding clause (b) (c) and (d) of Section 22 of DRC Act. Therefore, I consider this petition under section 22 (b),(c) and (d) of DRC Act.
27. From the pleadings itself, it is clear that the tenancy has been terminated by legal notice dated 12.02.2019 and the rent has been paid from November 2017 to November 2018 as the rent was last paid on 27.11.2018 as well as for the period from December 2018 till June 2019. The DRC Act does not provide any form for the notice of demand. All what is essential is a demand for the arrears of rent. After the demand, the landlord has to wait for a period of two months from the date of service of the notice of demand. The cause of action would arise when the tenant fails to pay the arrears within two months of the (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 21 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui service of the notice of demand. Nothing has been brought on record by the petitioners if any arrears of rent was outstanding on the date of cause of action as the demand notice was issued on 12.02.2019 and it is admitted that payment has been made in the account of petitioner no.1 on 25.02.2019. Hence, the petitioner has miserably failed to prove non-payment of rent in the present case.
28. As far as ground of subletting is concerned, it is admitted by PW1 that the Hijama clinic was run by the son of the respondent. It was further admitted by PW1 that the same has been shifted out of the tenanted premises after filing of the petition and that the respondent was continuously using the tenanted premises even during the period during which the Hijama Clinic was being run from the tenanted premise. Hence, the petitioner miserably failed to prove that the respondent ever parted with the possession of the tenanted premises.
29. In the case titled as Kala and another Vs. Madho Parshad Vaidya, 1998, 6 SCC, 573; the Hon'ble Apex Court reiterated the very same principle observing that the burden of proof of subletting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.
30. In the case titled as Prem Parkash Vs. Santosh Kumar Jain & Sons and another, 2017, law suit (SC) 872, the relevant para (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 22 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui is as under:-
"18. sub-tenancy or subletting comes into existence when the tenant gives a possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene.
Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person in possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the subtenant. It would also be difficult for the (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 23 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui landlord to prove, by direct evidence, that the person to whom the property had been sublet, had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sublease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to have been paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the fact of the case."
31. Hence, there was no subletting by the respondent at any stage.
32. It was next contended on behalf of the petitioners that substantial damage has been caused by the respondent by adding mazzanine floor in the tenanted premises without obtaining the consent of the petitioners in writing but there is no evidence to that regard. Hence, this ground is also not proved by the petitioners.
33. As fas as ground of bonafide by the public institution for furtherance of its activities is considered, it was observed in case titled (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 24 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui as Bhawani Shankar vs Nand Lal And Ors on 7 September, 2021(Delhi HC), as follows:-
"The essential ingredients which a landlord is required to show for the purpose of getting an eviction order for bona fide needs are (i) the petitioner is the owner/landlady of the suit premises (ii) the suit premises are required bona fide by the landlord for himself/herself and any of his/her family members dependent upon him/her. (iii) the landlord/landlady or such other family members have no other reasonable suitable accommodation."
34. In Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353, it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate to the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with.
35. Similarly in Abid-ul-Islam Versus Inder Sain Dua, 2023 (Delhi HC), it was reiterated that there has to be satisfaction on two grounds, namely, (i) the requirement being bona fide and (ii) the non- availability of a reasonably suitable residential accommodation. Such reasonableness along with suitability is to be seen from the perspective of the landlord and not the tenant.
36. In case titled as Anil Bajaj and Anr. v. Vinod Ahuja, (2014) 15 SCC 610:
(NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 25 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui "It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilised by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business."
37. In Bega Begum v. Abdul Ahad Khan [(1979) 1 SCC 273] it was held that the words "reasonable requirement" undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire.
38. Similarly, in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222], the Hon'ble Apex Court while dealing with the aspect of bona fide requirement has said that the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself -- whether in the given facts, (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 26 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere and honest.
39. Harking back, it is contended by the petitioners that the area available to the petitioners is falling short to cater to the needs of the medical facilities of the local residents and thus causing hardship to them. Admittedly, the petitioners are running a diagnostic centre for patients to fulfil its charitable obligations towards the mankind. The diagnostic centre is providing facilities of ultrasound and X-RAY with pathological test as per the admission of the respondent himself as elicited during his cross examination. Naturally, the people who would be visiting the diagnostic centre are going to be people of different age or who would be in some form of physical discomfort and seeking medical tests as well as other medical facilities. It is only natural to assume that in such a situation, premises located on ground floor would be much better suited for the purported purpose of the petitioners. Also, there is no lift in the said building and only a ramp as admitted by the respondent, hence the harship is obvious.
40. Hence, premises on the ground floor would certainly serve the purpose of the petitioner in a better manner. A diagnostic centre which admittedly is being run on upper floor should be allowed to include the tenanted premises which is situated on ground floor as it would be more comfortable for many patients/visitors who cannot use stairs or ramp due to bodily inefficiency or any ailment thus, being more more convenient and accessible.
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41. Reference can be made to case titled as Uday Shanker Upadhayay Vs Navin Maheshwari, 2009 (14) Scale 103 has held that the ground floor is the best premises to start any business.
42. It is urged by learned counsel of the respondent that only a handful of patients visit the diagnostics centre of the petitioner. It is immaterial whether the diagnostic centre of the petitioner is a flourishing one or not. What needs to be seen is that the requirement of the petitioner is bona fide and honest and that the same is a need rather than mere desire or wish.
43. In case titled as Sarla Ahuja Vs. United Insurance Company 1998(8) SCC 119 it was held that it is not for the tenant to dictate terms for the landlord as to how and when he can adjust himself without getting possession of the tenanted premises. It was further held that when the landlord asserts that he required his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bonafide.
44. Therefore, by applying the ratio of abovesaid judgments and in view of the discussions made above in the light of entire material placed on record, it can very well be said that the petitioners have been able to prove bonafide need. Once it is proved to the satisfaction of the court that need is really bonafide then adverse inference cannot be drawn. Hence, this court is of the view that need of the petitioners is bonafide, which the petitioners have proved on record.
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45. The respondent has next contended that the petitioners have already available space with them from where the need of the petitioners can be satisfied.
46. At this juncture, it is pertinent to mention that in case titled as Balwant Singh @ Bant Singh & Anr. v. Sudarshan Kumar & Anr. in case bearing Civil Appeal Nos. 231-232 of 2021 decided on 27.01.2021, the Hon'ble Supreme Court has observed that:
"It is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate. It has further been observed that the genuine need of the appellant to secure vacant possession of the premises for the proposed business is found to be established. The adequacy or otherwise of the space available with the landlord for the business in mind is not for the tenant to dictate"
47. Similarly, the Hon'ble High Court of Delhi in another case titled as 'Om Prakash Bajaj v. Sh. Chander Shekhar, 102 (2003) DLT 746, wherein it was observed that:
"Suitability of the alternate premises cannot be determined by mere counting the rooms. But it has to determine keeping in view the totality of facts, the nature of need pleaded by the landlord, his and his (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 29 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui families standard and style of life and the purpose to which the landlord wants to actually put it after coming it into possession. The landlord has right to choose which of the accommodation is required by him for himself and for his family members."
48. In the present matter, no details of other properties have been given by the respondent anywhere. Therefore, it cannot be said that the petitioners have any other property in their name. It is pertinent to mention that the respondent has also brought subsequent fact on record that the petitioners obtained vacant possession of the second floor of the building in which tenanted premises is situated vide order dated 06.06.2022. However, what is material is that whether the vacant premises obtained by the petitioner is any better than the premises which the petitioners are seeking through the present petition. Hence, the vacant portion at second floor of the tenanted premises is immaterial in view of suitability of the ground floor as discussed above.
49. It was next argued on behalf of the respondent that petitioners want to get the premises in question evicted for ulterior motives and would misuse the same after eviction for its gain. The said apprehension is already taken care of in the DRC Act itself by our legislative forefathers while enacting the laws who have already considered possibility of misuse in the hands of unscruplous landlords and thereby inserted Section 19 of DRC Act whch reads as follows:-
(NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 30 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui "Where a landlord recovers possession of any premises and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, relet to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit."
50. Hence, if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an order of eviction, subsequently lets out the property or sells the same, the tenant can always apply for restitution under section 19 of the DRC Act.
CONCLUSION/RELIEF
51. In view of the aforesaid judgments and observations made above, it has now been clear that suitability has to be decided by the petitioner himself and tenant has no right to dictate landlord in this regard. The entire record shows that respondent has not annexed any documents which could show that petitioners have other reasonably suitable accommodation with them. Therefore, petitioners have a complete right to choose property which is actually suitable for them (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 31 of 32 New No. 610/19 Jamiat Trust Society Vs. Shafique Siddiqui and tenant has no right to dictate to the landlord whatsoever manner, it may be. The petitioners clearly established bonafide requirement regarding tenanted premises.
52. Resultantly, in view of above, it can be said that the petitioners no.1 and 2 are public institutions and premises in question are bona-fide required by the petitioners for the furtherance of its activities and all ingredients of section 22 (d) of DRC Act stands fulfilled. Accordingly, the present petition is allowed and the petitioners are entitled to recover the tenanted premises i.e. 1501-1515, Ward no.6, Jamiat Building, Gali Qasim Jan, Ballimaran, Delhi-06 as shown in the red colour in the site plan.
53. No order as to costs.
54. File be consigned to Record Room. NEETU byNAGAR Digitally signed NEETU NAGAR Date: 2023.09.19 16:16:08 +0530 (NEETU NAGAR) ARC-02 (Central) Tis Hazari Courts, Delhi (Announced in open court on 19.09.2023) (This judgment contains 32 pages) (NEETU NAGAR) ARC-02 (Central), THC, 19.09.2023 Page no. 32 of 32