Delhi High Court
Smt. Pushpa Bajaj vs Shri. Jugal on 27 September, 2002
Equivalent citations: 101(2002)DLT36, 2003(67)DRJ248
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. This civil revision petition is directed against a judgment dated 28th August 1993 passed by Shri A.S. Yadav, Additional Rent Controller, Delhi in Suit No. E-33/91 whereby and whereunder an eviction petition filed by the petitioner herein against the respondent under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter called and referred to for the sake of brevity "the Act" for short) for eviction of the respondent from the suit premises, was dismissed.
2. That the fact of the matter as stated in the eviction petition is as under:-
"(1) That the petitioner is the owner/landlady of the suit property-bearing No. AA-29, Shalimar Bagh, Delhi-52, which consists of one bed-room Along with one drawing room at the ground floor, besides kitchen and bathroom, and similar accommodation is available at the first floor, as well as on the second floor of the suit property. Besides this, there is a Barsati at the top floor, so as to use it for special purposes of dumping goods which are not in common use, or not in use.
(2) That the family members of the petitioner consist of herself, two sons-out of whom one is married, and the other is of the age of 21 years, and is also of a marriageable age. Besides this, there are two married daughters, who are settled in Delhi, and frequently visit the petitioner/landlady. The husband of the petitioner is missing, and his whereabouts are not known till now. Besides there is a servant in the house.
(3) That the petitioner/landlady constructed these independent units, each having one bedroom and one drawing room, so that each of her son may have their accommodation at the first floor and the second floor independently, and the petitioner/landlady may reside at the ground floor bedroom. The visiting daughters-with their respective families may come and stay either at the first floor or at the second floor to suit their convenience. The total accommodation available in the entire house is three bedrooms and three drawing rooms;
out of which one bedroom and one drawing room besides kitchen and bathroom is under the tenancy of the respondent for residential purpose, which is not in dispute.
(4) That it is also an admitted fact on record that during the pendency of the petition, the eldest son of the petitioner got married, and his wife is not staying with her husband, because of the paucity of the accommodation.
(5) That it is also an admitted fact on record that the petitioner cannot use the second floor without crossing through the drawing room on the first floor, in which the staircase from the ground floor leads to the second floor.
(6) That it is also an admitted fact on record that the petitioner made an application in a civil suit pending in the Court of Shri. K.S. Pal, the then S.J.I.C.:
Delhi, where the petitioner/landlady was permitted to put an iron lader from outside her house to the balcony of the first floor, so that the family of the petitioner may have an independent access to the second floor, without crossing through the drawing room at the first floor under the tenancy of the respondent, vide his Order dated 8th August, 1991, during the pendency of the present eviction petition. The second floor cannot be used by the petitioner/landlady, who is suffering from obesity of high magnitude, and she is not in a position to climb the iron ladder, which is on the Municipal land, and the M.C.D. is threatening to remove it, or face the prosecution in a competent Court of law."
3. The learned court below, keeping in view the fact that no registered document was executed in favor of the petitioner, inter alia, held that she being non-user of the property, was not entitled to obtain a decree as prayed for.
4. Mr. Deepak Khadaria, learned counsel appearing on behalf of the petitioner would submit that a General Power of Attorney and a Special Power of Attorney having been executed, the same would constitute a clear proof of ownership of the premises in question. In support of the said contention, reliance has been placed on B.K. Gupta v. Sudarshan Chaudhary, , Rameshwar Narain (deceased) through LRs v. Sarla Sarin, and Kishan Lal v. Rajan Chand Khanna, 1992 RLR 347.
5. The learned counsel as regards the finding of the learned Additional Rent Controller to the effect that the petitioner has not been able to prove the bona fide, submitted that in the instant case, the learned Additional Rent Controller has misdirected himself in so far as he failed to take into consideration that:
(i) barsati cannot be used as a bed room;
(ii) having regard to the fact that the petitioner is an old lady and is not in a position to climb the stairs, it could not be held that she could use the barsati as her bed room; and
(iii) if barsati is left out, the material on record would show that there are only two units on the ground floor and the second floor consisted of one bed room besides one drawing and dining room which could not be used as a bed room.
6. According to the learned counsel, a landlord, is entitled to ask for more accommodation for a comfortable living. He had further erred in holding that a guest room is also necessary as the married daughters and other relations visit the premises occasionally.
RE: ownerSHIP
7. ownership is a bundle of rights. The term 'owner' has not been defined in the said Act. It, however, stands admitted that the respondent herein was inducted by the petitioner. It may be that whereas agreement of sale was executed in favor of the petitioner's two sons, both General Power of Attorney and Special Power of Attorney were executed in the name of the petitioner. The petitioner, although cannot be said to be the owner of the property in terms of the provisions of the Transfer of Property Act or the Indian Registration Act, she would be a landlord in relation to the respondent as he had been inducted by her. If the respondent was inducted by the petitioner, the former will be estopped and precluded from raising a contention that the latter is not his landlord in view of the provisions of Section 116 of the Indian Evidence Act.
8. In Prakash Chand Gupta v. Inder Sen Gupta, , it was observed that in view of the respondent's own admission that petitioner let out premises to him, nothing more was required to be proved on record.
9. Furthermore, the ownership in the context of the said Act must be deemed to mean that a person who has a higher right than the tenant.
10. In Sushil Kanta Chakravarty v. Rajeshwar Kumar, it has been held:
"7. I have given my careful consideration to the arguments advanced by the learned counsel appearing for the parties. The question for determination is that for the purposes of Rent Control Act wherein person in does favor an agreement to sell- cum-power of attorney has been executed and had assumed possession after making substantial payment in terms of the agreement of the ale price, would be owner within the meaning of Section 14(1)(e) of the Act, in T.C. Rekhi v. Smt. Usha Gujral, (1971 Ren CJ 322) the question came up for consideration before this Court and this is how My Lord Justice Inderdev Dua, Hon'ble the Chief Justice (as His Lordship then was) dealt:-
"... I do not think the mere fact of Smt. Usha Gujral being a lessee from the Government of the site would take her out of the category of "owner" within the contemplation of Section 14(1)(e) of the Act. The word "owner" as used in this clause, has to be construed in the background of the purpose and object of enacting it. the use of the word "owner" in this clause seems to me to have been inspired by the definition of the word "landlord" as contained in Section 2(3) of the Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any other person. Construed in the context in which the word "owner" is used in Clause (e), it seems to me to include all persons in the position of Smt. Usha Gujral who have taken a long lease of sites from the Government for the purpose of building houses thereon. The concept of ownership seems now to be eclipsed by its social and political significance and the idea of ownership, in case like the present is one of the better right to be in possession and to obtain it. To accede to the contention raised by Shri Kapur would virtually nullify the effect of Clause (e) and would render all such landlords remedyless against tenants however badly they may need the premises for their own personal residence. I do not think such a result was intended by the Legislature and I repel the appellant's contention...."
11. In B.K. Gupta v. Sudarshan Chaudhary, (supra), a learned Judge of this court has relied upon a decision of the Apex Court in Smt. Shanti Sharma and Ors. v. Smt. Ved Prabha and Ors. which is to the following terms:
"The word 'owner' has not been defined in this Act and the word 'owner' has also no been defined in the Transfer of Property Act. The contention of the learned Counsel for the appellant appears to be 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 person who held properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State and in this view of the matter it could not be though of that the Legislature when it used the term 'owner' in the provision of Section 14(1)(e) it though of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It would 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 ground on basis of which landlords have been permitted to have eviction of a tenant. 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.
Admittedly in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is the owner of the structure. So far as the land is concerned he holds a long lease and in this view of the matter as against the tenant it could not be doubted that the will fall within the ambit of the meaning of the term 'owner' as it contemplated under this section."
12. In Kishan Lal v. Rajan Chand Khanna, 1992 RLR 347, the court observed as under:
"32. Mr. Jaitley, learned counsel for the respondent submitted vehemently that the ownership of the respondent could not be disputed by the petitioner as he has got the ownership, being the donee by a registered Gift Deed from P.C. Khanna. Secondly, even otherwise, is so far as the respondent is concerned, he is undoubtedly the owner of the premises in dispute as under the law laid down by the Supreme Court, owner should be something more than tenant. It has already been noticed and referred to earlier that after the registered Gift Deed AW 1/1, the respondent has been the owner since 1955 to show the tenant has attorney and the property has been put in hotch potch of H.U.F. known as R.C. Khanna & Sons and the property is being assessed as H.U.F. property since then by the I.T. Authorities. Mutation has also been effected in favor of the respondent by the M.C.d. and the house tax has been paid by the respondent regularly. Having regard to all such circumstance,s it cannot be disputed that the respondent is the owner qua the petitioner/tenant."
13. In that case also, Smt. Shanti Sharma and Ors. v. Smt. Ved Prabha and Ors. (supra) was followed.
14. It is, thus, not possible for this Court to accept the findings of the learned Additional Rent Controller. He may consider the matter afresh.
RE: BONA FIDE REQUIREMENT:
15. The family members of the petitioner are herself, two sons, one of whom was married and the other was of marriageable age (since married). Three married daughters who, being settled in Delhi, frequent the petitioner. The husband of the petitioner is said to be missing. The building in question consists of two independent units, each having one bed room and one drawing room. The said two units were on the first floor and second floor respectively. The petitioner resides at the ground floor as she is not in a position to climb up the stairs. It is further borne out from the records that the respondent is occupying the first floor of the premises. The total accommodation available in the entire house is three bed rooms and three drawing rooms out of which two bed rooms and one drawing room besides kitchen and bathroom are under the tenancy of the respondent for residential purposes.
16. If the sons are married, admittedly, they would like to have privacy and thus unless there are two bed rooms with attached bathrooms, it may not be possible to maintain their privacy. It is the contention of the petitioner that the second floor can be used only upon crossing through the drawing room of the first floor in which the staircase through the ground floor leads to the second floor. Even according to the petitioner, for seeking permission for an independent ladder from outside her own house to the balcony in the first floor, a prayer was made in the civil suit pending in the court of Shri K.S. Pal that the petitioner be permitted to put an independent ladder to the balcony of the first floor so that they may have an independent access to the second floor without crossing the drawing room of the first floor under the tenancy of the respondent.
17. In Maya Devi v. Amar Singh, 1998 RLR 523, a learned single Judge of this court held:
"3. The learned Controller has obviously misdirected himself and not applied his mind to the merits of the judgments as referred to in paragraph 19. In Hargun Das v. Rewa Chand, 1984 Rajdhani Law Report 60 the Court clearly laid down the purpose of the provision of Section 25-B for granting leave to contest petition if the facts disclosed in the affidavit of the tenant are as such to disentitle the landlord to obtain an Order of eviction. Paragraph 7 of the judgment may be reproduced as follows:-
"7. There can be no two opinion that a landlord is entitled to live comfortably in his own house and as in the instant case his grown up children are not expected to be huddled together in one room. No doubt, as urged by the learned counsel for the petition, there is no rule of thumb which entitles the landlord to claim a separate room for each member of his family in each and every case and the requirement of the landlord has to be judged in each case objectively having regard to his special status, financial position, family background and the composition of his family etc. However, even if the landlord is person of modest means it would be highly unjust and improper to expect him to huddle together his grown up sons and daughters in one room and he legitimately claims additional accommodation which is in possession of a tenant for making his own life and that of his family members comfortable. Thus, there is no escape from the conclusion that a minimum of three rooms is dire need of the respondent - landlord in the instant case, one room for himself and his wife, one room for his second son and third room for his grown up daughters."
18. Yet again in Mahesh Chand Gupta (Dr.) v. Shiv Sarup, 1998 RLR 627, it was observed:
"It is in this connection that the traditions and customs of each society have to be taken into account in determining the meaning of the word 'himself'. It is true that the joint family system is not so much prevalent and this system is disrupting, but even then our social system has not yet reached a stage where parents and married sons do not live together if it is possible to do so. Rather there is still a bona fide and genuine desire for the parents and the sons to live together in the same house if it is possible to do so. In the present case the landlord obviously has no means of livelihood and the husband is an old man and cannot reasonably look after the comforts of the family. In such a situation if the sons who are now grown up and are married and are in a position to set up residence for themselves were asked to go out of the premises on this ground that their living together with the mother and father was not a bona fide requirement of the landlady, it would be giving a big low to the relationship between the parents and the children and in importing the practices which are as yet foreign to our social system."
19. In Partap Rai Kalra v. Om Prakash Sharma (supra) , it has been held that if a landlord is a man of status, he is entitled to comforts.
20. In K.K. Ohri v. Dr. Balraj Seth and Ors., , it was observed:
"The whole premises of the argument of the petitioner is based on an assumption that it is the choice of a tenant as to how the premises has to be used by a landlord. The tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement is totally shown as mala fide or not genuine."
21. As the learned Additional Rent Control has not considered the matter from the afore-mentioned points of view, this court is of the opinion that the matter need be considered afresh. It would be open to the parties to file an appropriate application for appointment of an Advocate Commissioner so as to enable the Additional Rent Controller to appreciate not only the topography of the premises in question but also to appreciate as to whether the requirement of the petitioner is bona fide or not.
22. For the reason afore-mentioned, the impugned order cannot be sustained which is set aside accordingly and the matter is remitted to the learned Additional Rent Controller for consideration of the matter afresh and decide the issues in accordance with law.
23. The civil revision petition is, thus, allowed with no order as to costs.