Delhi District Court
Mrs. Madhur Bhargava vs Sh. B.B. Mathur on 8 August, 2014
IN THE COURT OF SHRI SANDEEP GARG : ADMINISTRATIVE
CIVIL JUDGE CUM ADDITIONAL RENT CONTROLLER
(CENTRAL) : DELHI
E381/2013
Unique ID No : 02401C0439262013
In the matter of:
1. Mrs. Madhur Bhargava,
W/o Late Sh. K.K. Bhargava,
R/o E15 & 16, Nizamuddin West,
New Delhi.
2. Ms. Gayatri Singh @ Gayatri Bhargava,
W/o Sh. Vikram Singh,
R/o I6, Maharani Bagh,
New Delhi.
3. Ms. Shraddha Bhargava,
D/o Late Sh. K.K. Bhargava,
R/o E15 & 16, Nizamuddin West,
New Delhi.
....Petitioners
Versus
Sh. B.B. Mathur,
At First Floor of property no. 3/13B,
Asaf Ali Road, New Delhi.
.....Respondent
O R D E R:
E381/2013 Page 1/20
1. This order shall dispose of application for leave to defend filed on behalf of the respondent under Section 25B (4) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958) seeking leave to contest the present eviction petition.
2. The present eviction petition has been filed by the petitioners Ms. Madhur Bhargava, Ms. Gayatri Singh @ Gayatri Bhargava and Ms. Shraddha Bhargava against the respondent viz. Sh. B.B. Mathur under Section 14 (1) (e) read with Section 25B of the DRC Act, 1958.
3. The case of the petitioners is that the respondent is tenant in respect of first floor of property bearing no.3/13B, Asaf Ali Road, New Delhi comprising of four with common bathroom and open courtyard as shown in red, yellow and blue colours in siteplanB attached with the petition. The rent is Rs. 539/ per month exclusive of electricity, water charges and house tax. The tenanted premises was let out vide lease deed dated 24.04.1952. The premises are nonresidential and are being used by the respondent for running his office.
E381/2013 Page 2/20
4. The property bearing no.3/13B, Asaf Ali Road, New Delhi was taken on perpetual lease by Smt. Savitri Bhargava from Delhi Improvement Trust vide registered lease deed dated 24.04.1952. After taking the plot on lease, Smt. Savitri Bhargava constructed basement, ground floor, first floor and second floor. A suit for partition was filed by family members of Smt. Savitri Bhargava and vide decree dated 15.05.1975, Sh. Kavi Kumar Bhargava became absolute owner of the entire first floor of the said property w.e.f. midnight of 31.03.1975. Smt. Savitri Bhargava was given life interest in respect of second floor of this property. The tenants at the first floor started paying rent to Sh. Kavi Kumar Bhargava and tenants of the second floor started paying rent to Smt. Savitri Bhargava.
5. Smt. Savitri Bhargava expired on 07.03.1990 and her life interest came to an end. The respondent/tenant of the second floor started paying rent to Sh. Kavi Kumar Bhargava, who expired on 29.05.1993. Sh. Kavi Kumar Bhargava died intestate and he left behind four legal heirs viz. Ms. Madhur Bhargava (widow), Ms. Pooja Bhargava, Ms. Gayatri Bhargava and Ms. Shraddha Bhargava (unmarried daughters). Ms. Pooja Bhargava expired on 26.12.1996 and therefore, her rights devolved upon the remaining three legal heirs. As such, the petitioners became owners of the E381/2013 Page 3/20 tenanted premises.
6. Petitioner no.3, Ms. Shraddha Bhargava is a practicing lawyer at District Courts and High Court of Delhi. She is having half portion of chamber no.440, Lawyers Chamber Block, Delhi High Court, New Delhi. She is having more than nine years of legal practice to her credit. She is having no proper space available with her for running a regular office. She requires 2050 sq. ft. area for running her office. She requires 250 sq. ft. area for her own chamber, 500 sq. ft. for work station of three juniors/associates, 250 sq. ft. area for reception, 250 sq. ft. area for conference room, 300 sq. ft. for library, 100 sq. ft. for pantry, 300 sq. ft. secretarial/clerical staff and 100 sq. ft. for storage of files.
7. Petitioner no.2, Ms. Gayatri Singh @ Gayatri Bhargava did her Post Graduation in Craft Design Major form the Indian Institute of Crafts and Design (IICD), Jaipur in 2002. She started her career in March, 2002 as a Product Development Executive for Shades of India where she worked till June, 2003. Thereafter, she worked as Merchandiser cum QA in a European Buying Office called CMINT till September, 2005. Thereafter, she worked as a Merchandiser (Head, Handicrafts Division, Pier 1 and Home Plus E381/2013 Page 4/20 Accessories division for Pier 1 Kids) for Pier 1 Imports, a publicly owned company till 31.05.2007. Thereafter, she worked as a Market Representative with Target Sourcing Services till 14.11.2008 and as a Senior Market Representative in the Home Textiles & Hardgoods Division with William Connor & Associates Ltd. till 31.03.2009. In November 2007, petitioner no.2 got married and when she was on family way she resigned from her job in April, 2009 and the petitioner no.2 is now keen to get back to work by starting her own work.
8. Petitioner no.2 wishes to set up a buying office having had vast experience and expertise in the said field and having had long standing relationships and contacts with various buyers, vendors and factories. Petitioner no.2 need a place to start her own office with ample area where freight and logistics, and merchandisers and designers can sit, vendor factories can come to display their products and buyer and meetings can be held. Petitioner no.2 will need to employ staff to assist and carry out the various tasks associated with her business. She requires 300 sq. ft. area for her own cabin, 500 sq. ft. for work stations for the associates, 250 sq. ft. area for reception, 300 sq. ft. area for display/conference room, 100 sq. ft. for pantry, 300 sq. ft. for work station for secretarial staff and 250 sq. ft. for E381/2013 Page 5/20 storage of merchandise/samples/files/records. The total requirement of petitioner no.2 is 2000 sq. ft. area.
9. In the name of availability of the commercial premises, the petitioners have got only the first floor and second floor of the property bearing no.3/13B, Asaf Ali Road, New Delhi, which is entirely in occupation of the tenants. No portion of these two floors is available to the petitioners. Apart from the petitioner no.3 having a right to use one half chamber in Lawyers Chamber Block, Delhi High Court, New Delhi measuring about 80 sq. ft., none of the petitioners own any commercial premises in entire Delhi or even anywhere else. There is an acute shortage of the premises to the petitioners. The tenanted premises are situated is most suitable premises to the petitioners for their use.
10. It is prayed that an eviction order may be passed in favour of the petitioners and against the respondent in respect of tenanted premises i.e. first floor of property bearing no.3/13B, Asaf Ali Road, New Delhi comprising of four rooms with common bathroom and open courtyard as shown in red, yellow and blue colours in siteplanB attached with the petition.
E381/2013 Page 6/20
11. Summons in the prescribed form under Schedule III of DRC Act, 1958 were served upon the respondent and thereafter, respondent had filed an application for leave to defend along with affidavit within the stipulated period.
12. It is stated on behalf of the respondent that eviction petition bearing no. E381/2013 is completely vague, lacks in material particulars and contradictory in nature. Further, false statement have been made in the Eviction Petition and as such petitionerslandlords have not approached this court with clean hands and intentionally concealed the material facts. It is settled law that one who comes to court must come with clean hands and effect of material concealment of facts goes to the root of the matter and the entire nature of proceedings instituted by the petitionerslandlords stand vitiated on the said account. Reliance is placed upon judgment delivered by the Hon'ble Supreme Court of India in the case of S.P. Chengavaraya Naidu (dead) by LRs Vs. Jagannath (Dead) by LRs. & Ors. The eviction petition filed by the petitionerslandlords deserves dismissal on the above grounds and there is no requirement for the court to adjudicate the present E381/2013 Page 7/20 case any further.
13. The plea taken by the petitionerslandlords to invoke the jurisdiction of this court is completely false, misconceived and untenable on facts in law. Site plan filed by the petitioners alongwith the eviction petition at internal page no. 18 shows the accommodation available with the respondent in the demised premises at Asaf Ali Road. The petitioners have intentionally, willfully and deliberately concealed and withheld from the court, the extent of accommodation available with them at Nizamuddin (West) and also at Maharani Bagh.
14. The respondent has placed on record the site plan of premises in the power and possession of petitioners no.1 & 3 at Nizamuddin (West). The premises bearing no. E15 and E16, Nizamuddin (West), New Delhi are two plots admeasuring 225 sq. yds. each. The total area of both the plots comes to about 450 sq. yds. which has been constructed in one unit. There are two entrances to the premises. The said property comprises of four rooms in all on the ground floor, four on the first floor and there is a barsati floor on the second floor. In such huge accommodation the total number of people occupying the said 9/10 rooms is only two, i.e. petitioners E381/2013 Page 8/20 no.1 & 3. They are living on the ground floor and two rooms out of the four on the first floor are being used for office purposes by the petitioner no.3, whereas, the other two rooms on the first floor and the Barsati floor are being lying vacant. The attached plan clearly shows that accommodation available with the petitioners at Nizamuddin (West). The petitioner no.3 is already having two rooms for her office purposes and she does not need any more accommodation.
15. The petitioner no.2, Smt. Gayatri Bhargava is already married and is living with her husband at 6Maharani Bagh, even she has more than seven to eight rooms available with her and the total number of people living at Maharani Bagh are just three i.e. petitioner no.2, her husband and two their three years old child. On her own admission, the petitioner no.2 has not been working for the last more than seven years, though, the respondent has been made to understand that petitioner no.2 has never worked at the place/office mentioned in the petition. The petitioner no.2 has also not mentioned the other requisites prior to start this kind of business i.e. regarding the registration before the various agencies/authorities.
16. It is settled law that the bonafide requirement of the landlord is E381/2013 Page 9/20 not synonymous with a mere wish, fanciful desire or whim of a landlord to occupy the disputed premises. It must be an honest, sincere and genuine need and the legislative intent in use of the word 'bonafide' is suggestive of the fact that the degree of intensity contemplated by the expression 'required bonafide' is much more higher than 'mere desire'
17. The demised premises situated at Asaf Ali Road which are under power, possession and occupation of the respondent are situated on the rear side of the first floor of property under reference and the said property is situated at a place which is very close to the most congested area of Delhi i.e. Chawri Bazar/Turkman Gate, and as such the same is just not suitable for the purpose mentioned in the petition. Even at the risk of repetition it is submitted that the premises in question is not suitable for petitioners no.2 &
3. This is also be worth mentioning that the said premises was let out to the respondent about 50 years before and he has been using the same for his office purposes. The court has to examine the effect of concealment of material facts by the petitioners regarding availability of alternative suitable commercial accommodation; effect of false statements made by petitioners that property no. E381, Nizamuddin (West) cannot be used for their alleged E381/2013 Page 10/20 business purposes; illusory bonafide requirement of the petitioners.
18. Per contra, the petitioners filed their reply alongwith counter affidavits to the application for leave to defend, filed by the respondent and have denied the allegations leveled by the respondent. They have denied the averments made by the respondent in his application for leave to defend and reaffirmed their stance, as averred in the petition.
19. Respondent filed his rejoinder and allegations leveled by the petitioners have been controverted. The averments made in the application for leave to defend have been reiterated and reaffirmed.
20. The court has heard the Ld. Counsel for the parties and perused the record carefully with their able assistance.
21. Ld. Counsel for the respondent places reliance on "Gurbachan Singh Sachdeva Vs. Gurbachan Singh Puri", 207 (2014) DLT 641 Delhi High Court; "Sanjay Chug Vs. Opender Nath Ahuja & Anr. 207 (2014) DLT 271 Delhi High Court; "Kishan Chand Vs. Jagdish Pershad & Anr. E381/2013 Page 11/20 (2003) 9 SCC 151"; Deena Nath Vs.Pooran Lal V (2001) SLT 195";
"Rahabha Productions Pvt. Ltd. Vs. Rajendra K Tabdib (1998) 4 SCC 49"
and "Shiv Sarup Gupta Vs. Dr Mahesh Chand Gupta (1999) 6 SCC 705".
22. Ld. Counsel for the petitioners has also placed reliance on "Mahesh Kumar Vs. Rishi Prakash 174 (2010) DLT 64" and "S. Harbant Singh Sahni & Anr Vs. Smt. Vinod Sikari 189 (2012) DLT 215 Delhi High Court".
23. While deciding the question as to whether leave to defend should be granted or refused, the Court is required to examine the case on the following aspects :
(a) That the petitioner is owner of the suit premises;
(b) Purpose of letting;
(c) That the premises is required bonafide by the petitioner; and
(d) That the petitioner has no other alternative suitable accommodation in Delhi.
24. In Precision Metal & Engg. Works Vs. Prema Deva, Niranjan E381/2013 Page 12/20 Deva Tayal, AIR 1982 SC 1518, it has been held that "while deciding the application for leave to contest, the controller has to confine himself to the affidavit filed by the tenant under Sub Section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the landlord, the controller has to pose to himself the only question, "Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in clause of the proviso to Section 14 (1)?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits."
The gist of the various decisions is that if any triable issue is raised in the application which can not be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused.
25. In (2002) 7 SCC 614 titled as Rita Lal Vs. Raj Kumar Singh, Hon'ble Supreme Court has observed as under : "If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the E381/2013 Page 13/20 leave to defend. A defence, which is practically moonshine, sham or illusory can not be held to be raising a triable issue. Else the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated." Ownership
26. There is no dispute about ownership as respondent has not denied ownership of the petitioners. Accordingly, the court holds that petitioners are prima facie landlords/owners of the tenanted premises qua the respondent.
Purpose of Letting
27. Purpose of letting has become redundant as in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 Supreme Court, it has been held that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements. Availability or NonAvailability of alternative suitable accommodation in Delhi E381/2013 Page 14/20
28. The respondent has contended that all the three petitioners are joint owners of property bearing no. E15 & E16, Nizamuddin (West), New Delhi, two plots measuring 225 sq. yds. each, which have been constructed as one unit. There are two separate entrances, four rooms on the ground floor, four rooms on the first floor and barsati on the second floor. This property containing about 9/10 rooms is occupied only by two persons i.e. petitioners no.1 & 3. They are living on the ground floor and out of four, two rooms on the first floor are being used by petitioner no. 3 for her office purposes. Petitioner no. 2 is already married and she is living with her husband at # 6, Maharani Bagh, New Delhi, where she is having more than 7/8 rooms. The total number of persons living at Maharani Bagh are only three i.e. petitioner no. 2, her husband and their three year old child. Therefore, there is ample space available with the petitioners no. 2 & 3 to run their textile, garments/allied office and a lawyer's office respectively. Moreover, properties no. E15 & E16, Nizamuddin (West), New Delhi are also located close to High Court of Delhi, District Courts, Patiala House and Saket and various other forums/tribunals. Petitioner no.3 can also operate her chamber/office from the residence as it is permissible for professionals.
29. On the other hand, it is contended on behalf of the petitioners E381/2013 Page 15/20 that the ground floor of property bearing no. E15 & E16, Nizamuddin (West), New Delhi is occupied by petitioners no.1 & 3 for their residential use. The first and barsati floors of this property is in illegal and unauthorized possession of Ms. Aarti Bhargava, paternal aunt of the petitioners. Moreover, the petitioners require commercial property and this property is a residential property and therefore, not suitable to meet the requirements of the petitioners.
30. In 173 (2010) DLT 379, Delhi High Court, it has been observed by Hon'ble Delhi High Court vide para no. 25 that "If a landlord wants to start his own business in the premises owned by him, then by no stretch of imagination it can be said that the requirement of the landlord for premises in question is neither bonafide nor genuine."
31. In "Ragavendra Kumar Vs. Firm Prem Machinery & Company", AIR 2000 SC 534, it was observed by Hon'be Supreme Court that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter (reliance placed upon "Prativa Devi Vs. T.V. E381/2013 Page 16/20 Krishnan, (1996) 5 SCC 353). In AIR 2003 SC 156, it was observed that it is for the landlord to choose which one would be preferable to him or her and a tenant cannot question such preference.
32. The first and barsati floors of the tenanted premises are not in occupation of the petitioners. The petitioners are in occupation of ground floor of property bearing no. E15 & E16, Nizamuddin (West), New Delhi. In any case, the said property is residential and the petitioners require commercial premises for use of petitioners no.2 & 3. Accordingly, the court is of the considered view that the petitioners have been able to show that they are not having any other reasonably suitable accommodation for their commercial uses and the respondent has not been able to raise any triable issue on this aspect.
Bonafide requirement
33. It is contended on behalf of the petitioners that petitioner no.3, Ms. Shraddha Bhargava is a practicing lawyer at District Courts and High Court of Delhi. She is having half portion of chamber no.440, Lawyers Chamber Block, Delhi High Court, New Delhi. She is having more than E381/2013 Page 17/20 nine years of legal practice to her credit. She is having no proper space available with her for running a regular office. She requires 2050 sq. ft. area for running her office. She requires 250 sq. ft. area for her own chamber, 500 sq. ft. for work station of three juniors/associates, 250 sq. ft. area for reception, 250 sq. ft. area for conference room, 300 sq. ft. for library, 100 sq. ft. for pantry, 300 sq. ft. secretarial/clerical staff and 100 sq. ft. for storage of files.
34. Petitioner no.2, Ms. Gayatri Singh @ Gayatri Bhargava is keen to get back to work by starting her own work and she wishes to set up a buying office having had vast experience and expertise in the said field and having had long standing relationships and contacts with various buyers, vendors and factories. Petitioner no.2 need a place to start her own office with ample area where freight and logistics, and merchandisers and designers can sit, vendor factories can come to display their products and buyer and meetings can be held. Petitioner no.2 will need to employ staff to assist and carry out the various tasks associated with her business. She requires 300 sq. ft. area for her own cabin, 500 sq. ft. for work stations for the associates, 250 sq. ft. area for reception, 300 sq. ft. area for display/conference room, 100 sq. ft. for pantry, 300 sq. ft. for work station E381/2013 Page 18/20 for secretarial staff and 250 sq. ft. for storage of merchandise/samples/files/records. The total requirement of petitioner no.2 is 2000 sq. ft. area.
35. On the other hand, it is contented on behalf of the respondent that the requirement of petitioners is not bonafide. Petitioner no.2 has never worked at the place/offices mentioned in the petition. There is no mention about requisites required prior to starting of business like registration with various agencies/authorities. It is well settled law that the requirement of the landlord should not be a mere wish, fanciful desire or whim to occupy the tenanted premises. It should be an honest, sincere and genuine need. The petitioners have created a projected requirement with a calculated move to oust the respondent from the tenanted property. The income tax returns of the recent years, filed by petitioner no.3 shows her income to be not very significant. Therefore, it is unlikely that petitioner no.3 would require elaborate staff and space to meet her requirements.
36. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta VI (1999) SLT 163 = (1999) 6 SCC 222 wherein, it was observed by Hon'ble Supreme E381/2013 Page 19/20 Court of India that : "12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession, of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified ground. One such ground is the premises let for residential purposes being required bonafide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bonafide requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bonafide' or 'genuine' preceding as an adjectiveis an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or "requires bonafide" an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning."
13.Chambers 20th Century Dictionary defines bonafide to mean "in good faith: genuine". The word 'genuine' means 'natural; not spurious; real" pure: sincere'. In Law Dictionary, Mozley and Whitley defines bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in 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, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and E381/2013 Page 20/20 circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."
37. The court is of the considered view that the respondent cannot question the requirement of the petitioners on the ground that petitioner's no. 3 recent years income tax returns reflect insignificant income and therefore, E381/2013 Page 21/20 she is not likely to require elaborate staff and space to meet her requirements. It is very natural for businessman/professionals to have long term plans while setting up their offices/establishments. The requisites prior to starting business i.e. registration with various agencies/authorities can be conducted/obtained in few weeks.
38. In view of the above discussion, the Court is of the view that the respondent has failed to set up any triable issue which requires inquiry or trial. In other words, primafacie there is nothing on record which would disentitle the petitioners of the right of immediate possession in respect of the tenanted premises.
39. Accordingly, the application under Section 25B (4) of Delhi Rent Control Act, 1958, filed by the respondent is dismissed. Eviction order is passed in favour of the petitioners and against the respondent in respect of first floor of property bearing no.3/13B, Asaf Ali Road, New Delhi comprising of four rooms with common bathroom and open courtyard as shown in red, yellow and blue colours in siteplanB attached with the petition. This order shall not be executable before expiry of six months E381/2013 Page 22/20 from today. Parties to bear their own costs.
File be consigned to Record Room.
Announced in the open court (SANDEEP GARG)
on 08.08.2014 Administrative Civil JudgeCum
Additional Rent Controller (Central)
Delhi
E381/2013 Page 23/20
E381/2013
08.08.2014
Pr: None.
Vide separate order of even date, application for leave to defend, filed by the respondent is dismissed. Eviction order is passed in favour of the petitioners and against the respondent in respect of first floor of property bearing no.3/13B, Asaf Ali Road, New Delhi comprising of four rooms with common bathroom and open courtyard as shown in red, yellow and blue colours in siteplanB attached with the petition. This order shall not be executable before expiry of six months from today. Parties to bear their own costs.
File be consigned to Record Room.
(Sandeep Garg) ACJcumARC (Central) Delhi/08.08.2014 E381/2013 Page 24/20