Delhi District Court
Sh. Lekh Raj Madan vs Smt. Vidya Devi (Huf) on 19 August, 2015
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 538/13
Unique I.D. No. 02401C0464432013
In the matter of :
Sh. Lekh Raj Madan
S/o Sh. Khan Chand
R/o A4/13, Jiwan Jyoti Apartments,
Pitampura, Delhi. ...........Petitioner
Versus
Smt. Vidya Devi (HUF)
Through its 'Karta' Pramod Kumar
41064107, Ground Floor,
Naya Bazaar, Delhi. ...........Respondent
ORDER
19.08.2015
1. Vide this order, I shall dispose off the application moved by respondent for grant of leave to defend the eviction petition filed by the petitioner u/s 14(1)(e) of the Delhi Rent Control Act, 1956 [in short, 'the Page 1 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 2 DRC Act'].
2. An eviction petition has been filed by the petitioner Sh. Lekh Raj Madan against the tenant/respondent Smt. Vidya Devi (HUF) for vacation of the tenanted premises, i.e., one shop measuring 41'.6" x 9'.3" on the ground floor of property no. 41064107, Naya Bazaar, Delhi, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act.
3. The case of the petitioner is that the petitioner is the owner of the shop on the ground floor of property bearing no. 41064107, Naya Bazaar, Delhi. That prior to March 2006, the whole building where the tenanted premises is located consisting of three floors above the ground floor was under the ownership of the petitioner alongwith his four brothers jointly. In July, 1990, the tenanted premises was leased out to the respondent/tenant at a monthly rent of Rs. 500 excluding electricity and water charges. The petitioner alongwith Sh. Harish Chawla was earlier carrying on business of good grain trading in the name of Daulat Ram Khan Chand & Co.. However, the said business was closed down in 2004 and sales tax registration number was also surrendered to the authorities. In March 2006, the joint property bearing no. 41064107, Page 2 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 3 Naya Bazaar, Delhi was sought to be partitioned along the joint owners and duly registered Partition Deed was executed between the coowners of the said property. Due to typographical error in the said Partition Deed, a Rectification Deed dated 10.04.2012 was executed. That by virtue of the said Partition Deed, the petitioner became the sole and absolute owner of the tenanted premises and the respondent attorned in favour of him and started paying rent to him. It is submitted by the petitioner that after the closure of partnership business in food grain trading, the petitioner started business of supplying machinery parts, hardware, electrical goods, etc. in the name & style of Shri Balaji Project Supplier. The said business is registered under the Delhi Sales Tax Act, 1975. The said business was started by the petitioner from home only. However, presently the children of the petitioner are grown up and are of marriageable age and thus, dependent upon the petitioner for residential purpose. The working from home in these circumstances has become inconvenient. It is further submitted by the petitioner that of late the present business of the petitioner in the name of Shree Balaji Project Supplier is not yielding much profit and the petitioner is looking forward to adding up new ventures to supplement the present income. Since the petitioner had experience and knowhow of good grain business, he wants to start retailing of the same. That the tenanted premises is Page 3 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 4 located in the momentous market in Naya Bazar, Delhi which is most suitable for starting business of the petitioner and thus, the petitioner want to shift his business in the tenanted premises.
4. It is further averred by the petitioner that though he owns accommodation on first and second floor of property no. 41064107, Naya Bazaar, Delhi but the same are in possession of other tenants and are not available to him. Moreover, accommodation on first and second floor are small rooms which are not suitable for retailing business which the petitioner intends to start. There is also a small space on the ground floor under the staircase other than the suit premises and the same is also under tenancy of tenants since long. It is pertinent to mention that it is a small space and available height of the space is less than the height of a normal person. Further, it is stated that the petitioner also owns a godown space in village Haiderpur, which is being used for storing supply material by the petitioner. It is submitted by the petitioner that he does not have any alternative suitable accommodation available to him which shall meet his bonafide requirement.
5. Further, it is averred by the petitioner that he had earlier filed a similar petition in 2012 in the name of Vidya Devi & Ors intead of Vidya Page 4 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 5 Devi (HUF). The respondent raised the objection regarding the maintainability of the said petition in the name of Vidya Devi & Ors. when tenancy was created in favour of Vidya Devi (HUF). Thus, the petitioner withdrew the said petition with leave of the court to file a fresh petition on the same cause of action.
On the above stated grounds, the present eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises.
6. Summons were served upon the respondent who filed leave to defend application taking various grounds interalia :
a) That the Partition Deed and Rectification Deed allegedly executed between the petitioner and his brothers are sham and bogus documents. That infact, there was no intention to divide the properties. That all the five coowners of the property were the joint owners of property bearing no. 41064107, Naya Bazaar, Delhi, which comprises of seven shops on the ground floor, ten shops on the first floor and fourteen shops on the second floor. The purported Partition Deed has been created to create artificial paucity of accommodation. That infact, no partition has taken place between the petitioner and his brothers and the rightful Page 5 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 6 tenants have been paying rent of the suit property to the co owners and rent receipts are also being issued by coowners only.
b) That the actual reason for withdrawing earlier petition bearing no.
147/2013 was to play fraud on the court as the respondent succeeded in bringing on record various triable issues.
c) That in the earlier eviction petition filed by the petitioner, it was averred by the petitioner that additional space is required by the petitioner for his business under the name & style of Shree Balaji Project Supplier on the basis of growing business, increase in number of clients and new projects forthcoming. In the present petition, however after two months of withdrawing of earlier eviction petition, new and contradictory plea of bonafide requirement has been taken wherein it is stated by the petitioner that Shree Balaji Project Supplier is not yielding much profit and the petitioner wants to start retailing of good grain business and therefore, wants to shift his business to the tenanted shop. Thus, the conduct of the petitioner lacks bonafide.
d) That in the earlier eviction petition, the petitioner had concealed that he owns a godown space in village Haiderpur which has now been pleaded in the present petition for the first time.
e) That the petitioner has malafidely concealed that he alongwith Sh. Page 6 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 7
Harish Chawla and Yudishtar Chawla are gainfully doing business of good grain and rice under the name & style of M/s Daulat Ram Khan Chand from the first floor of the suit property and are in possession of five rooms, a huge balcony and a toilet, total area measuring 32' x 42' sq. yds. The petitioner himself has an office situated in the said area.
f) That the DVAT return filed by M/s Shree Balaji Project Supplier with the department of Trade and Taxes clearly shows that the said firm is engaged in pulses business for the last so many years, thus, proving that petitioner is already engaged in the business of food grains and rice in partnership with Sh. Harish Chawla and Yudishtar Chawla.
g) That in the garb of Rectification Deed, the petitioner has repartitioned the property with other coowners and thus, the present petition is barred u/s 14 (6) of the DRC Act.
7. Reply to the application for leave to defend has been filed by the petitioner wherein the petitioner has denied all the averments made by the respondent in his leave to defend application stating that the Partition Deed is a registered document of the year 2006 and at that time the commercial premises were not covered u/s 14 (1) (e) of the DRC Act, Page 7 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 8 which subsequently came into force after passing of judgment by the Hon'ble Apex Court in Satyawati Sharma's case in 2008. It is averred by the petitioner that it could not be foreseen that the said Partition Deed could have been used for getting eviction of tenants from the premises. It is further submitted that the respondent is directly paying rent to the petitioner only and rent receipts are being issued by the petitioner. It is further submitted by the petitioner that there is no illegality if the petitioner wants to start or add up any more or further business to his existing one. It is admitted that the petitioner has experience in grain business and therefore, the need of the petitioner is bonafide. That the accommodation owned by the petitioner in village Haiderpur is a godown which is used for storage purposes and thus, is totally not suitable for the proposed business of the petitioner. The petitioner has specifically denied that he is not doing any business of grain from the first floor of the suit property in association with Sh. Harish Chawla and Yudishtar Chawla. As far as plea taken by the respondent that the name board installed on the premises in the name of Daulat Ram Khan Chand & Co. is concerned, it is submitted that that board pertains to the time prior to 2006, i.e. prior to surrender of Sales Tax registration number of the said firm. It is submitted by the petitioner that he has filed DVAT and TIN Number of Shree Balaji Project Supplier and it can be easily verified if Page 8 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 9 there is anybody else who is the partner in the said firm. The operating address of Shree Balaji Project Supplier is mentioned mentioned in the Sales Tax Registration Certificate which is the residential address of the petitioner only and not the first floor portion of the suit premises. It is further submitted by the petitioner that Rectification Deed was executed only to correct some typographical errors and no new right was created by way of said Rectification Deed.
8. Rejoinder to the reply to leave to defend application has been filed by the respondent, wherein, the respondent has reaverred what was averred by him in his leave to defend application.
9. I have heard the arguments and perused the material available on record.
10. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are :
a) The said premises are bonafide required by the Page 9 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 10 landlord either for himself or for his family member.
b) The landlord or the family member has no other reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
11. The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus: "The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must Page 10 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 11 be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non residential accommodation in his occupation in the city/town is available. The judgment/order of Page 11 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 12 the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
12. Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine i.e. without fraud or deceit". Requirement is not a mere desire. The degree of intensity contemplated by "requires" Page 12 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 13 is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the 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 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 circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
13. The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous Page 13 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 14 considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent. Ownership as well as landlordtenant relationship :
14. The respondent has not disputed the ownership of the petitioner over the suit premises or the existence of landlordtenant relationship. The only contention made by the respondent is that the Partition Deed executed between the petitioner and his brothers is a sham document and purported Partition Deed was executed between the joint owners just to create artificial scarcity of accommodation so that property shall be evicted to sell it out at a huge premium.
15. I have heard the contentions of the parties and have also gone through the record.
16. The respondent has nowhere denied that the petitioner is joint owner of the suit property. The petitioner has in his turn filed copy of Partition Deed pertaining to year 2006. At that time, the Hon'ble Supreme Court had not passed the judgment of Satyawati Sharma's case. It was only after passing of judgment of Satyawati Sharma's case Page 14 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 15 that commercial premises could have been vacated for bonafide requirement. Thus, it cannot be said that alleged Partition Deed was executed in order to get eviction of the tenants since at that time petitioner could not have contemplated that Hon'ble Supreme Court would pass such a law in future which would entitle the landlord to eviction of tenants from commercial properties as well. Even otherwise, after execution of Partition Deed, respondent attorned in favour of the petitioner and started paying rent to him in individual capacity. Petitioner has also filed copy of rent receipts wherein rent was paid by the respondent in his individual capacity after 2006. The respondent, on the other hand, has failed to file even a single rent receipt to show that after 2006, rent was paid to joint owners of the suit property.
17. The other averment made by the respondent is that after execution of Rectification Deed, the present petition is barred u/s 14 (6) of the DRC Act. This contention of the respondent is also without any substance since from the very beginning, the petitioner was the coowner of the property and no new right has been created in his favour after execution of the Partition Deed or Rectification Deed. Regarding the contention of the respondent that various Sale Deeds were executed by the brothers of the petitioner after execution of Partition Deed, the same Page 15 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 16 is also baseless as the properties were sold by coowners in their individual capacity of their respective shares and these Sale Deeds are all duly registered.
Bonafide requirement :
18. It is averred by the petitioner that the petitioner is presently carrying on business under the name & style of Shree Balaji Project Supplier from his house, i.e., his residential address and in support of the same, he has also filed copy of Sales Tax Registration Certificate of the said firm. It is further stated by the petitioner that with the passage of time and to meet growing needs of his family members and due to increase in size of his family, it has become very difficult to continue his business from his residential address. It is further stated that petitioner wants to expand and develop his operation in grain trading having attained experience of the same and since the tenanted premises is situated in momentous market in Naya Bazar, therefore, the petitioner wants to shift his business to the tenanted premises. Per contra, it is averred by the respondent that in the earlier eviction petition, the petitioner had taken the plea that since the business of M/s Shree Balaji Project Supplier has expanded, the petitioner wants to shift to the Page 16 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 17 tenanted premises to expand his business, whereas, in the present eviction petition, it is stated that M/s Shree Balaji Project Supplier is not yielding much profit and therefore, he wants to divert his field of business.
19. I have heard the contentions of both the parties and have also gone through the record.
20. It is not denied that the petitioner is carrying on business in the name & style of M/s Shree Balaji Project Supplier from his residential address. It is nowhere stated that the petitioner has separate place of business. The only contention made by the respondent is that the petitioner is already carrying his business of food grain since from DVAT return of M/s Shree Balaji Project Supplier it is clear that the company is dealing in good grain. It is also stated by the respondent that earlier it was stated by the petitioner in the earlier eviction petition that the business of M/s Shree Balaji Project Supplier is growing manifold and therefore, he wants larger space to expand his business, whereas, in the present petition he has taken a contradictory plea that M/s Shree Balaji Project Supplier is incurring losses and therefore, he want to divert his field of business. It is clear from the DVAT return filed by the petitioner Page 17 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 18 that M/s Shree Balaji Project Supplier is also dealing with pulses alongwith other materials but since it has nowhere been disputed that presently, the petitioner is carrying on business from his residential address, therefore, the petitioner cannot be denied of his right to carry on his business from retail market at Naya Bazaar, which would definitely fetch much more customers as compared to his residential address. Even otherwise, it cannot be denied that market at Naya Bazaar is well known market of good grains and even if the petitioner is dealing in pulses then also, the petitioner would earn much more profit at Naya Bazaar. Petitioner cannot be denied of his right to enhance his profit just because he decided to let out the premises in question at rent to the tenant at one point of time. It is not denied that the children of the petitioner have grown up and financial requirement of the petitioner is increasing and even otherwise, children of the petitioner are dependent upon him for residential accommodation and after their marriage more space will be required to accommodate their family. Nothing could have been better for petitioner than retail shop at Naya Bazaar situated on the ground floor which would definitely fetch much more customers as compared to shop in residential premises. Hence, the bonafide requirement of the petitioner duly stands proved. Page 18 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 19 Availability of alternative suitable accommodation:
21. It is averred by the respondent the petitioner alongwith Sh. Harish Chawla and Yudishtar Chawla are gainfully doing business of good grain and rice under the name & style of M/s Daulat Ram Khan Chand from the first floor of the suit property and are in possession of five rooms, a huge balcony and a toilet, total area measuring 32' x 42' sq. yds. and that the petitioner himself has an office situated in the said area. However, no Sale Tax Registration number of the said firm has been filed in order to conceal the same. On the other hand, in the counter affidavit, the petitioner has denied these allegations. Even otherwise, it is stated by the petitioner that initially the family of Sh. Khem Chand, father of the petitioner and Sh. O.P. Madan on one hand and family of Sh. Daulat Ram, father of Sh, Brij Mohan Chawla, Sh. Harish Chawla and Sh. Yudhister Chawla on the other hand were carrying on business of grain marketing in partnership and also coowned the suit property. Further, it is stated that in the year 2006, the said partnership was dissolved and the property was partitioned. It is further stated that the sales tax registration certificate of the said firm was also surrendered and there is no firm existing in the name of M/s Daulat Ram Khan Chand & Co.. Petitioner has also filed income tax return and DVAT Return of his firm Page 19 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 20 M/s Shree Balaji Project Supplier stating that the said firm is a registered firm and it can be easily verified if there is anybody else is a partner in the said firm. No document of M/s Dautal Ram Khan Chand & Co. has been filed by the respondent to substantiate that the petitioner is a partner in the firm or that the said firm is in existence.
22. The respondent has also pleaded that the petitioner has acquired small properties on the first and second floor of the suit premises which can be used by the petitioner for his requirement. However, the petitioner has clearly stated in his eviction petition that premises on first and second floor falling under ownership of the petitioner are small offices which are rented out long time back. Further, it is stated that the accommodation on the first and second floor is not suitable for a retail business which the petitioner intends to start. Same is also not disputed by the respondent otherwise. Moreover, it cannot be denied that shop on the ground floor would be much more profitable as it would fetch much more customers as compared to first or second floor of the property.
23. Further, it is submitted by the respondent that the petitioner has under his occupation another shop on the ground floor which can be used by him for running his business. The petitioner has produced all Page 20 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 21 the rent receipts in order to prove that there is a small shop under the staircase of ground floor which is under tenancy of a tenant. Even otherwise, the said shop is very small that even a single person cannot stand in it and thus, is not suitable for the requirement of the petitioner, who require much larger space for his retail business. Likewise, godown space in the village Haiderpur also cannot be said to be an alternative suitable accommodation in comparison to ground floor shop at Naya Bazaar, Delhi. Thus, the respondent has failed to prove availability of any alternative suitable accommodation with the petitioner.
24. Further, it is averred by the respondent that the petitioner had earlier also filed an eviction petition which was withdrawn by him as the respondent succeeded in raising number of triable issues in that petition.
25. I have gone through the pleadings and ordersheet of that case which clearly shows that the previous eviction petition was filed by the petitioner against Smt. Vidya Devi and in the leave to defend application filed by the respondent, the respondent had taken a preliminary objection that the said petition is not maintainable since the same was not filed against the real tenant, i.e. Vidhya Devi (HUF) and thus, petitioner on this ground had withdrawn the earlier eviction petition with liberty to file a Page 21 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13 22 fresh eviction petition.
26. Thus, from the discussion made above, respondent has failed to raise any triable issue, which requires evidence to be proved. The petitioner, on the other hand, has clearly established his bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondent is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondent u/s Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e., one shop measuring 41'.6" x 9'.3" on the ground floor of property no. 41064107, Naya Bazaar, Delhi, as shown in red colour in the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
on 19 Day of August, 2015.
th
CCJ cum ARC1 (Central)
[This order contains 22 pages.] Tis Hazari Courts, Delhi
Page 22 of 22 Lekh Raj Madan Vs. Smt. Vidhya Devi (HUF) E - 538/13