Delhi District Court
Sh. Tarun Goel vs Shri Gurbachan Singh Dhingra on 10 December, 2018
In the Court of CCJ cum ARC, Pilot Court (Central District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Susheel Bala Dagar
Case No. E799/17
U. ID No. 931/17
In the matter of :
1. Sh. Tarun Goel
S/o Shri Surinder Kumar Goel
R/o V/636, Mehrauli
New Delhi110030.
2. Shri Abhnav Goel
S/o Shri Virander Goel
R/o 1077, Sector 40,
Gurugram (Haryana). ...........Petitioners
Versus
1. Shri Gurbachan Singh Dhingra
S/o Shri N.S. Dhingra
R/o Rahan Besara,
Village Sultanpur, Mehrauili,
New Delhi110030.
2. Shri Kuldeep Singh Dhingra
S/o Late Shri Niranjan Singh Dhingra
R/o 555, Sukh Sarvar,
Village Gadaipuri, Mehrauli,
New Delhi110030.
3. U.K. Paint Industries
(a partnership firm)
Local Office / last known
office at :
First Floor
397680, Bazar Ajmeri Gate,
Delhi110006.
4. M/s British Paints
a unit of Berger Paints (India) Ltd.,
(a company duly registered under the
E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 1 of 32
Companies Act, 1956)
having its:
(i) Registered Office at :
Berger House
129, Part Street,
Kolkatta700017.
(ii) Local Office(s)
(a) First Floor
397680, Bazar Ajmeri Gate,
Delhi110006.
(b) 19, DDA Community Complex,
DDA Market,
Zamrudpur, Opposite L.S.R. College,
New Delhi110048.
(c) Basement Floor,
Raghushri Market,
adjoining Ajmeri Gate,
Delhi110006. .............Respondents
Date of institution : 31.10.2017 Date of reserved for judgment : 16.11.2018 Date of judgment : 10.12.2018 Decision : Petition allowed JUDGMENT :
1. An eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises, i.e., 397680, First Floor, Bazar Ajmeri Gate, Delhi110006 shown in red colour in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').
2. The case of the petitioner is that the petitioners jointly are the E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 2 of 32 owners of the immovable property bearing no. 397680, Bazar Ajmeri Gate, Delhi110006 having acquired title to the same in terms of an Indenture of Sale dated 27th June 2007 executed in favour of the petitioners by the erstwhile owner Smt. Satya Gupta (a paternal aunt of the petitioners). The said sale deed dated 27th June 2007 is duly registered on 27th June 2007. A true copy of this indenture of sale is annexed as Annexure B. The premises in suit more fully shown bounded by red colour in the site plan annexed as Annexure A. The premises in suit are bonafide required by the petitioners jointly as well as severally, for their own use and occupation.
3. The petitioners intend to set up their own office in the premises in suit. The petitioners, jointly or severally, do not own or possess any other suitable and ideally located premises that may be as conveniently placed as are the premises in suit for housing the proposed office of the petitioners. The petitioners are (first) cousins. The petitioner no. 1 Shri Tarun Goel is a bachelor. The petitioner no. 2 Shri Abhinav Goel is married to Smt. Kokila Goel. The petitioner no. 1 is presently employed as a manager in the firm of his mother which is M/s Sai Tyre House carrying on business at 252E, Sant Nagar, East of Kailash, New Delhi 110065. The petitioner no. 1 is not happy with the designation, as well as his salary (Rs. 14,000/ per month, consolidated), which he is getting from his own mother for working for her in the aforesaid business of tyres. The petitioner no. 1 has completed his studies and thereafter obtained a Diploma in Computer Applications from the NIIT, Delhi. Now E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 3 of 32 the petitioner no. 1 is desirous of shifting from there and establishing his own enterprise albeit in partnership with petitioner no. 2 and the wife of the petitioner no. 2 herein.
4. The petitioner no. 2 Shri Abhinav Goel is a post graduate in Business Administration and Bachelor in Finance and Investment Analysis. The wife of the petitioner no. 2, namely, Smt. Kokila Goel, is a Master in Technology on the subject of Computer Science & Engineering. Currently, she has extensive / vast experience in Software as well as Hardware (over six years) including that as an Assistant Professor with the Information Technology Department in Indira Gandhi Institute of Technology at Kashmere Gate, Delhi110006 where she was lastly employed. Smt. Kokila Geol, for diverse causes and reasons, including the fact that she was in the family way did not continue her employment with the aforesaid organization. These days Smt. Kokila Goel is working as computer expert at home, designing software and websites for prospective customers but she is not able to operate, for lack of business accommodation, her professional activity in any market (software / hardware). The petitioners, by personal experience, are wellqualified in handling computers and in particular the net, as also various softwares. The petitioners have decided to set up in association with her a new business in computers from the premises in suit.
5. The premises in suit are located on the intersection of the main road that leads to Chawari Bazar and Swami Shradhanand Marg, Delhi 110006 right opposite to Ajmeri Gate/ Kamla Market and / or the New E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 4 of 32 Delhi Railway Station (besides being just one kilometers away from Pahar Ganj, New Delhi110055). The aforesaid site (i.e., the premises in suit) is geographically advantageous for the aforesaid proposed business of computers hardware and software as it is very near to commercial hubs of Chawri Bazar, Nai Sarak, Hauz Qazi, Naya Bazar, Chandni Chowk, Khari Baoli, Sadar Bazar, Azad Market, Asaf Ali Road, Paharganj, and Darya Ganj besides Kashmere Gate.
6. The ground floor of this property is tenanted. The petitioners do not have available to them even an inch of space on the ground floor. The fathers of the petitioners herein have been carrying on their business from the aforesaid major portion on the ground floor under the name and style of Goel Motor Works since prior to the day on which the petitioners were born. The remaining portion on the ground floor of this building is in use and occupation of the sons of Shri Trilok Chand (deceased), who was the real brother in law (sala) of the petitioners' grandfather Shri Tara Chand Goel (now deceased). In so far as the petitioners are aware Shri Trilok Chand (deceased) was a sub tenant qua the premises in his use and occupation under Shri Tara Chand Goel (deceased; grandfather of the petitioners herein) against whom eviction proceedings instituted by the father of the petitioner no. 2 herein are already subjudice. The entire ground floor of this building was in the tenancy of Shri Tara Chand Goel (now deceased) since 1930 or thereabout. The petitioners, jointly and / or severally, are unable to institute any eviction petition against their own fathers qua the ground floor portion of the building in reference.
E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 5 of 327. The petitioner no. 2 namely Shri Abhinav Goel is now 32 years old and is a highly qualified professional. He has obtained his Bachelor's Degree in Finance and Investment Analysis besides a Post Graduate Diploma in Business Management and Certificate Course in Actuarial Techniques / Sciences. The petitioner no. 2 is also having more than nine years of post qualification professional experience in Marketing and Research. He is currently employed in Nestle India Limited as Assistant Manager at their office in Nestle House, DLF City, PhaseII, Gurgaon at a gross salary of Rs. 1,20,000/. The petitioner no. 1 namely Shri Tarun Goel has done B.Com (Hons.) from Delhi University and is currently looking after his mother's (Smt. Anita Goel) business at shop bearing no. 252E, Sant Nagar, East of Kailash, New Delhi110065. To enhance his earnings and also obtain job satisfaction, Shri Tarun Goel has got himself registered / enrolled as an Insurance Agent with the New India Insurance Company (a premier insurance company dealing in General Insurance). The petitioner no. 1 is also not satisfied with his present job. He now has 13 years experience in running a retail business, as also an active Insurance Agent.
8. On or about 29.11.2012, the petitioners herein had instituted an eviction petition qua the premises in suit, inter alia, propounding that the petitioners were interested in establishing their business of general insurance in and around the National Capital Territory of Delhi for which business, they require the premises in suit. The aforesaid eviction petition has remained subjudice since then and now because of E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 6 of 32 subsequent developments, including the fact that the aforesaid proposed enterprise of insurance which the petitioners were wanting to establish for themselves have ceased to be a lucrative business, the petitioners have abandoned the aforesaid idea to start the aforesaid proposed new business and are now concentrating on establishing this business of computers. The aforesaid eviction petition has since been abandoned by the petitioners and has been dismissed as withdrawn on the date of hearing i.e. 29.08.2017. The petitioners are now proceeding to institute this eviction petition on a different cause of action which has accrued to the petitioners in 2017.
On the above stated grounds, prayer is made for eviction of the respondents from the tenanted premises.
9. Summons were served upon the respondents, respondent no. 1 to 3 appeared and filed leave to defend application, which was allowed vide order dated 27.02.2018 and the respondents were granted leave to contest the present eviction petition. Thereafter, written statement was filed by the respondents denying the contentions made by the petitioners in the eviction petition stating that the petitioners are not the owners of the premises in suit. The said premises continues to be owned by Smt. Satya Gupta, who in a Bua (aunt) of the petitioners and she had no grounds for seeking eviction of the tenant from the premises in suit. She has joined hands with the petitioners to create a fictitious ground of bonafide need and is using them as a front for seeking eviction of the tenant from the premises in suit for herself and for the said purpose, on paper only E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 7 of 32 entered into a sham paper transaction of alleged transfer of the ownership of the premises in suit within the family in the names of the petitioners and never intended to be acted upon. Even if for the sake of arguments, the present petitioners are considered as the owners of the premises in suit as claimed by them, their alleged need is not bonafide and not genuine. The petitioners have suppressed the accommodation available with them. The petitioners after obtaining possession of tenanted premises, plan to demolish and redevelop the same into a big commercial complex. The petitioners are in possession and occupation of the following properties as alternate suitable accommodation available to them. The entire ground floor of the suit property is in possession and occupation of the petitioners. The petitioners have made a false statement that a major portion of this ground floor is in occupation and use of their fathers as tenants, who are carrying on business therefrom by the name "Goel Motor Works'. It is submitted that prior to the filing of the present petition, the petitioner had filed another petition for eviction under Section 14(1)(e) of the Delhi Rent Control Act in which the petitioners did not even make a reference of the ground floor and as respondents disclosed in their affidavit in that petition about the petitioners also owning and possessing this ground floor. In the present petition, the petitioner have although admitted their ownership, but have falsely claimed that the possession is with their fathers. Originally, the said ground floor was under the tenancy of the fathers of the petitioners who were in its actual use and possession and from the date, petitioners claim E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 8 of 32 to have purchased the entire property including the premises in suit, the petitioners are having complete access to the same and are in its complete use, occupation and possession. No particulars of the eviction proceedings filed by the petitioner no. 2 Shri Trilok Chand (deceased) who was allegedly subtenant under Shri Tara Chand Goel (deceased), its number, pending in which Court, etc. and when they were instituted and what is the present status of the said proceedings have been disclosed. The alleged plea of the tenancy/ sub tenancy with respect to the Ground floor of the suit property is absolutely false and incorrect. The petitioners are also in absolute and exclusive possession and occupation of the entire mezzanine floor and second floor of the suit property. The existence of these floors is established from the site plan filed by the petitioners alongwith the present petition. The petitioners are also in absolute and exclusive possession and occupation of the terrace which also has a constructed store on the said floor of the building.
10. Further, it is submitted that besides the aforesaid building, the petitioners are also in possession and occupation of property bearing no. 252E, Sant Nagar, East of Kailash, New Delhi. The said property is a fully developed and constructed property in 100 sq. yards, which has a huge basement, ground floor, first floor, second floor, third floor alongwith terrace. This property is owned by Smt. Anita Goel, the mother of petitioner no. 1 and is available to both the petitioners in its entirety. Some portion of this East of Kailash property is being used by the petitioner no. 1 for carrying on the business of automobile tyres and E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 9 of 32 tubes, which is his own full fledged business, which he is falsely claiming to be his mother's, falsely claiming to be working as her employee in that business and getting salary. It is submitted that a good size portion, atleast of the size of the premises in suit has been always and continues to be available to the petitioners from out of the said property. It is submitted that this property is located in South Delhi and can cater to the entire South Delhi which also has similar GST requirements of computer which the petitioners want to work on under the purported proposed business.
11. Further, it is an admitted case of the petitioner no. 2 that he is gainfully employed with M/s Nestle India Ltd and his gross salary is Rs. 1,20,000/. M/s Nestle India Limited is a Multi National Company and with the qualifications, the petitioner no. 2 claims to possess, he has a very bright and secure future, which no reasonable and prudent person will ever give up for an uncertain business proposition in today's recession period. The office of the petitioner no. 2 is in Gurugram and his residence is also in Gurugram. In the earlier petition filed by the petitioner no. 2, he had a grievance that his office was in Gurugram and his residence was in Mehrauli and he had to travel atleast 3 k.m. a day. It is submitted that the petitioner no. 2 is now living in Gurugram itself near the place of his work, whereas the premises in suit is in Ajmeri Gate, which would be approximately 60 kms from his residence, which would be more than double the distance he was complaining of.
12. It is submitted that the claim made in the present petition that the E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 10 of 32 wife of petitioner no. 2 Smt. Kokila Goel is a master in Technology on the subject of Computer Science & Engineering is absolutely false and incorrect and its falsity is proved by the petitioners themselves who had on 28th March 2016 in the application for withdrawal of the previous eviction petition no. E211/12 (subsequently renumbered as E. 77646/16) alleged her to be an expert in online Marketing and wanted to used and exploit her said alleged expertise and also sought liberty to file fresh petition incorporating the same. It is submitted that even otherwise the alleged wife of petitioner no. 2 namely Smt. Kokila Goel has no intention of doing or being involved in any business of Software or otherwise alongwith the petitioners from the premises in suit as claimed by them. She is continuing to be gainfully employed as an Assistant Professor with the Information Technology Department in Indira Gandhi Institute of Technology at Kashmere Gate, Delhi110006 where she was lastly employed. Even otherwise, the said Smt. Kokila Goel is claimed to have given up her said employment being in the family way. It is submitted that if that is correct and she is in a family way, question of her doing the alleged business and travelling for the said purpose daily around 60 kms from Gurugram to Ajmeri Gate one way is not intended and also not possible. It is submitted that neither any of the petitioners nor Smt. Kokila Goel has the capability, knowledge, qualification and expertise to carry on the specialized business of Computer Software and Hardware.
13. Further running the business in the name of the mother and showing petitioner no. 1 as her employee in papers will not amount to her E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 11 of 32 running the same. The said business is a very well established and profitable one being run by the petitioner no. 1 with good turnover and there is no other person in the family of the petitioners who can look after the said business. The petitioners have made a false statement of petitioner no. 1 having undertaken studies and obtained a Diploma in Computer Applications from the NIIT, Delhi. Petitioner no. 1 is himself admitting that he is full time employed / carrying on business in the name of M/s Sai Tyre House from the premises no. 252E, Sant Nagar, East of Kailash, New Delhi110065 and that in the previous petition and also in the present petition he claims to be also an active Insurance Agent with New India Assurance Company with many years of experience.
14. It is submitted that the petitioners on 29th November 2012 filed eviction petition being E211/12 (Subsequently renumber as E77646/16) under Section 14(1)(e) of the DRC Act, which has been withdrawn by the petitioners with a liberty to file a fresh petition incorporating subsequent events and/ or new cause of action that had allegedly arisen to them, which permission was granted to them. It is submitted that the purported cause of action and alleged ground of bonafide requirement on which the said eviction petition was based is the same as the present petition and as such the present petition is barred. The copy of the said earlier eviction petition being E221/12 (subsequently renumbered as E. 77646/16) filed by the petitioners against the respondents is being filed.
15. The petitioners have sought to cause confusion about the tenancy of the suit premises. The respondent no. 3, is a Partnership Firm / tenant E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 12 of 32 in the tenanted premises. The petitioners are aware that the present tenant of premises in suit is U.K. Paints (India) Pvt. Ltd., a company incorporated by the partners who had taken over the assets and liabilities of the partnership firm including the tenancy rights of the premises in suit in the year 1984. Copies of the Partnership Deeds dated 21.01.1975 and 03.04.1980 are being separately filed.. It is submitted that M/s U.K. Paints (India) Pvt. Ltd was subsequently converted into a Public Limited Company and was called M/s U.K. Paints (India) Limited which has again become Pvt. Ltd. Company. M/s Berger Paints India Limited is a Company owned by the promoters (partners of respondent no. 3) M/s U.K. Paints (India) Pvt. Ltd. British Paints is neither a Proprietorship Concern nor a Partnership Firm nor a Company within the meaning of Indian Companies Act.
16. Further it is averred that the premises in suit being situated in a slum area and Section 19 of the Slum Areas (Improvement and Clearance) Act 1956 bars the institution of any proceedings for obtaining any decree or order for the eviction of the tenant from any building or land in a slum area without the previous permission in writing of the competent authority appointed under the said Act. It is submitted that respondent no. 4 is not in possession of the premises in suit and is also not claiming to be the tenant or in possession of the premises in suit and there is no subletting or parting with possession of the premises in suit by the tenant (U.K. Paints (India) Ltd.)
17. Replication to the written statement of the respondents was filed by E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 13 of 32 the petitioners, wherein the petitioner has denied all the averments made by the respondents in their written statement, reaverring what was averred by them in the original eviction petition. It is submitted that the respondents have not alleged that the said sale deed dated 27.06.2007 was not genuinely executed by Smt. Satya Gupta (since deceased) on receipt of valuable sale consideration from the petitioners. It is not the case of the respondents, even today, that Smt. Satya Gupta, either before the execution and registration of the aforesaid sale deed dated 27.06.2007 in respect of the suit property or at any point of time thereafter, had ever demanded rentals/ usufruct qua the premises in suit from the respondents.
18. A look at the site plan of the premises in suit which is neither disputed nor denied by the respondents reveals that the total area of the land on which the building in reference is built, is hardly 65 sq. meters. It is reiterated that the petitioners do not have available with them, any other reasonably suitable accommodation / premises for their own use and occupation, either in the building in reference or in the vicinity of this building. The entire ground floor of this building is tenanted since prior to 1990. The entire mezzanine floor is in the tenancy of M/s Goel Motor Works since prior to the day the petitioners were born. This partnership firm, M/s Goel Motor Works Comprises of two partners, namely the fathers of the two petitioners herein. Mezzanine floor is even otherwise not as reasonably suitable and ideally located as are the premises in suit. The accommodation located on the second floor of the suit property is in use and occupation of the families of the fathers of the two petitioners for E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 14 of 32 long, for storing their obsolete items and records which the petitioners and / or their parents are not willing to destroy or discard because of their personal attachments with them. The aforesaid premises are located at such a height in the suit property that they are virtually inaccessible even for the petitioners who are young in age but are unable to rush up three floors every now and then. Even customers, who wish to associate with the petitioners in business deals, will not be able to reach the second floor of suit property. The tenanted premises which are located on the first floor of the suit property above the mezzanine floor are much more suitable and ideally located than the aforesaid premises located on the second floor of this building. On one hand, the respondents propound that the petitioners, jointly or severally, are stooges / puppets of Smt. Satya Gupta and have no title to the premises in suit, on the other hand, the respondents by pass their own pleas and propound the plea that the petitioners, jointly as well as severally, are owners in respect of the second floor. The accommodation above the terrace floor is certainly not as convenient and/ or located as are the tenanted premises which are located on the first floor.
19. The petitioners, jointly or severally, have no right, title or interest in the property bearing no. 252E, Sant Nagar, East of Kailash, New Delhi110048. One half portion on the ground floor (built on land admeasuring less than 100 square yards) belongs to and vests jointly in the two mothers of the two petitioners. The basement floor below this portion, less than one half in size on the left side belongs to the mother of E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 15 of 32 the petitioner no. 1, in which business goods, tyres, tubes, etc. are stored / kept. The rest of the building, including the basement, ground, first, second and third floor do not belong to or vest with anybody from amongst the members of the families of the two petitioners herein. The mother of the petitioner no. 1 namely Smt. Anita Goel is carrying on her business from the aforesaid site. Even otherwise, the tenanted premises located at one of the corners of the walled city of Delhi are much more ideally located visavis, the aforesaid accommodation at 252E, Sant Nagar, East of Kailash, New Delhi. The estate within NCR of the respondents, as known to the petitioners, is as under : (i) 19, DDA Commercial Complex, Zamrudpur, New Delhi110048 (ii) Godown Nos . 102 and 103, Rohtak Road, New Delhi (iii) B2 Janakpuri, New Delhi
(iv) B3, Janakpuri, New Delhi (v) 99/3, Okhla New Delhi (vi) 3, Tees January Lane, New Delhi (vii) 85, Golf Links, New Delhi (viii) Sukh Sagar Farm House, Gadaipur, New Chhatarpur, New Delhi.
20. It is specifically denied that the petitioner no. 2 has his office in his house at Gurugram, Haryana. Even otherwise, the aforesaid office in Gurugram, Haryana termed cannot be as reasonably suitable ideally located accommodation as would be the office of the petitioners when it is established from the tenanted premises. The colony in which the petitioner no. 2 alongwith his parents and family is residing is a residential colony and cannot compete, in any manner, with the commercial locality in which tenanted premises situated. The respondents being super super rich, are not aware that there is a direct link provided E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 16 of 32 by the Delhi Metro Rail Corporation between Gurugram, on one side, and Ajmeri Gate, on the other side and it takes less than one hour to travel from Gurugram till the aforesaid avenue New Delhi Railway Station. The law does not warrant that the petitioner no. 2 ought to continue to work for M/s Nestle India Ltd. as alleged. The respondents have no knowledge about the qualification, experience and / or expertise of the petitioners and / or their family members. The first eviction petition (E 211 of 2012) was instituted 5 years ago. During this period life / things in the country changed and, therefore, the petitioners were constrained to decide to abandon their old proposed professional assignments and set up something new which was more lucrative than that earlier job. Respondents, jointly and / or severally, have never personally met St. Kokila Goel nor ever made any attempt to appreciate after examining her capabilities, knowledge, qualification(s) and expertise qua this specialized business. The business of tyres is carried on by the mother of the petitioners no. 1, who is neither old nor frail. The petitioner no. 1 is merely her care taker/ Manager on duty to liaison with clients and visit to various offices to sell products as also to realize payments. The aforesaid earlier eviction petition kept pending but the petitioners did not press the same with vehemence for two reasons. The requirements of the petitioners in respect of the premises in suit drastically / dramatically changed. The father of the petitioner no. 2 herein was seriously ill.
21. It is submitted that the tenants were individual living persons for a partnership firm is not a legal entity and is never accepted, in the eyes of E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 17 of 32 law, to be a tenant in the premises in suit. M/s British Paints has been arrayed as a party to these proceedings to avoid any belated hyper technical and / or farcical objection that may be propounded by any person, for and on behalf of this entity commonly known as British Paints, for the board displayed at the site of the building in reference reads British Paints which prima facie shows that the actual physical possession of the premises in suit is that of M/s British Paints. It is well settled that while instituting an eviction petition, such as the present one, the landlord is not required to obtain from the office of Competent Authority (Slums) at Delhi, any requisite permission to institute the eviction petition.
22. During evidence, petitioner Tarun Goel, stepped into the witness box as PW1 and deposed on the lines of the eviction petition. Further, he relied upon the following documents :
a) Sale deed dated 27.06.2007 : Ex. PW1/1
b) Ex. PW1/2 is not on record and is deexhibited c) Rent note : Ex.PW1/3 d) Site plan : Ex.PW1/4
23. In their turn, the respondents have placed on record the certified copy of the earlier eviction petition filed by the petitioners against the respondents in evidence.
24. I have heard the contentions of both the parties and have gone through the record. Ld. Counsel for the petitioner has relied upon the case laws Ram Babu Agarwal v. Jay Kishan Das 2010 AIR (SC) 721, Dr. Jitendra Mohan Gulati v. Hira Lal Singh 2015 (219) DLT 489, Ranjit Kumar Chopra v. Virinder Khosla 2008(155) DLT 658 in support E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 18 of 32 of his arguments. Ld. Counsel for the respondents has relied upon the case laws Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta (1999) 6 SCC 222, Vidhyadhar v. Manikrao (1999) 3 SCC 573, Man Kaur (dead) by LRs v. Hartar Singh JT 2010(10) SC 565, Amarjit Singh v. Smt. Khatoon Quamarain (1986) 4 SCC 736, Sudha Agarwal v. Xth Additional Judge (1999) 6 SCC 332 in support of his arguments. Essential ingredients of Section 14(1)(e) of DRC Act, 1958.
i. Petitioner is the landlord and owner in respect of the tenanted premises;
ii. She requires the premises bonafidely for herself or for family members dependent upon her;
iii. She has no other reasonable suitable accommodation.
Ownership and existence of landlord - tenant relationship.
25. In the present case, the respondents have disputed the ownership of the petitioner over the premises in question. It is submitted that the said premises continues to be owned by Smt. Satya Gupta, who in a Bua (aunt) of the petitioners and she had no grounds for seeking eviction of the tenant from the premises in suit. She has joined hands with the petitioners to create a fictitious ground of bonafide need and is using them as a front for seeking eviction of the tenant from the premises in suit for herself and for the said purpose, on paper only entered into a sham paper transaction of alleged transfer of the ownership of the premises in suit within the family in the names of the petitioners and never intended to be acted upon. On the other hand PW1 has stated that the petitioners E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 19 of 32 are joint owners of the suit property in terms of the sale deed 27.06.2017 executed by Smt. Satya Gupta which is exhibited PW1/1. Perusal of the sale deed Ex. PW1/1 shows that the name of the tenant/ respondent is also mentioned in the sale deed Ex. PW1/1. Further more the petitioners have also relied upon the rent note Ex. PW1/3 executed on 28.06.1972 by Shri Sohan Singh. Once the respondents were admittedly tenants under the predecessor in interest / earlier owner of the tenanted premises, they are estopped from challenging the ownership of the present petitioners. Moreover, it is settled principle that in case respondent is admittedly tenant under earlier owner, and once Sale Deed is registered by the earlier owner in favour of petitioner any attornment by the tenant to the petitioner is not required. Reference may be made to : Sanjay Singh v. M/s Corporate Warranties Pvt. Ltd. (2013) 204 DLT 12; Harvinder Singh v. M/s. Paradise Tower Pvt. Ltd. (2013) 199 DLT (CN) 25; and Ambica Prasad v. Mohd. Alam (2015) 13 SCC 13. Thus, in view of the documents placed on record by the petitioners, the ownership of the petitioners over the premises in question for the purpose of the DRC Act as well as existence of landlordtenant relationship between the petitioners and the respondents stand duly proved.
Bonafide requirement
26. It is submitted by the petitioners that the petitioners intend to set up their own office in the premises in suit. The petitioners are (first) cousins. The petitioner no. 1 Shri Tarun Goel is a bachelor. The petitioner no. 2 Shri Abhinav Goel is married to Smt. Kokila Goel. The petitioner no. 1 is E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 20 of 32 presently employed as a manager in the firm of his mother which is M/s Sai Tyre House carrying on business at 252E, Sant Nagar, East of Kailash, New Delhi110065. The petitioner no. 1 is not happy with the designation, as well as his salary (Rs. 14,000/ per month, consolidated), which he is getting from his own mother for working for her in the aforesaid business of tyres. The petitioner no. 1 has completed his studies and thereafter obtained a Diploma in Computer Applications from the NIIT, Delhi. Now the petitioner no. 1 is desirous of shifting from there and establishing his own enterprise albeit in partnership with petitioner no. 2 and the wife of the petitioner no. 2 herein.
27. The petitioner no. 2 Shri Abhinav Goel is a post graduate in Business Administration and Bachelor in Finance and Investment Analysis. The wife of the petitioner no. 2, namely, Smt. Kokila Goel, is a Master in Technology on the subject of Computer Science & Engineering. Currently, she has extensive / vast experience in Software as well as Hardware (over six years) including that as an Assistant Professor with the Information Technology Department in Indira Gandhi Institute of Technology at Kashmere Gate, Delhi110006 where she was lastly employed. Smt. Kokila Geol, for diverse causes and reasons, including the fact that she was in the family way did not continue her employment with the aforesaid organization. These days Smt. Kokila Goel is working as computer expert at home, designing software and websites for prospective customers but she is not able to operate, for lack of business accommodation, her professional activity in any market (software / E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 21 of 32 hardware). The petitioners, by personal experience, are wellqualified in handling computers and in particular the net, as also various softwares. The petitioners have decided to set up in association with her a new business in computers from the premises in suit.
28. Per contra the respondents have claimed that the alleged need of the petitioners is not bonafide and genuine and the petitioners after obtaining possession of the tenanted premises plan to demolish and re develop the same into a big commercial complex. Further it is submitted that petitioner no. 1 as well as petitioner no. 2 are already gainfully employed. It is admitted case of the petitioner no. 2 that he is gainfully employed with M/s Nestle India Ltd and his gross salary is Rs. 1,20,000/. M/s Nestle India Limited is a Multi National Company and with the qualifications, the petitioner no. 2 claims to possess, he has a very bright and secure future, which no reasonable and prudent person will ever give up for an uncertain business proposition in today's recession period. The office of the petitioner no. 2 is in Gurugram and his residence is also in Gurugram. In the earlier petition filed by the petitioner no. 2, he had a grievance that his office was in Gurugram and his residence was in Mehrauli and he had to travel atleast 3 k.m. a day. It is submitted that the petitioner no. 2 is now living in Gurugram itself near the place of his work, whereas the premises in suit is in Ajmeri Gate, which would be approximately 60 kms from his residence, which would be more than double the distance he was complaining of.
29. It is submitted that the claim made in the present petition that the E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 22 of 32 wife of petitioner no. 2 Smt. Kokila Goel is a master in Technology on the subject of Computer Science & Engineering is absolutely false and incorrect and its falsity is proved by the petitioners themselves who had on 28th March 2016 in the application for withdrawal of the previous eviction petition no. E211/12 (subsequently renumbered as E. 77646/16) alleged her to be an expert in online Marketing and wanted to used and exploit her said alleged expertise and also sought liberty to file fresh petition incorporating the same. It is submitted that even otherwise the alleged wife of petitioner no. 2 namely Smt. Kokila Goel has no intention of doing or being involved in any business of Software or otherwise alongwith the petitioners from the premises in suit as claimed by them. She is continuing to be gainfully employed as an Assistant Professor with the Information Technology Department in Indira Gandhi Institute of Technology at Kashmere Gate, Delhi110006 where she was lastly employed. Even otherwise, the said Smt. Kokila Goel is claimed to have given up her said employment being in the family way. It is submitted that if that is correct and she is in a family way, question of her doing the alleged business and travelling for the said purpose daily around 60 kms from Gurugram to Ajmeri Gate one way is not intended and also not possible. It is submitted that neither any of the petitioners nor Smt. Kokila Goel has the capability, knowledge, qualification and expertise to carry on the specialized business of Computer Software and Hardware.
30. Further running the business in the name of the mother and showing petitioner no. 1 as her employee in papers will not amount to her E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 23 of 32 running the same. The said business is a very well established and profitable one being run by the petitioner no. 1 with good turnover and there is no other person in the family of the petitioners who can look after the said business. The petitioners have made a false statement of petitioner no. 1 having undertaken studies and obtained a Diploma in Computer Applications from the NIIT, Delhi. Petitioner no. 1 is himself admitting that he is full time employed / carrying on business in the name of M/s Sai Tyre House from the premises no. 252E, Sant Nagar, East of Kailash, New Delhi110065 and that in the previous petition and also in the present petition he claims to be also an active Insurance Agent with New India Assurance Company with many years of experience.
31. It is not the case of the respondents that the petitioner no. 1 and 2 or the wife of the petitioner no. 2 is having any independent business of their own. It is admitted that the petitioner no. 1 is looking after the tyre business at East of Kailash. Petitioner no. 2 is admittedly working with M/s Nestle India Pvt. Ltd and wife of petitioner no. 2 Smt. Kokila Goel is also not having any independent business of her own. The only contention of the respondents is that the petitioners have not placed on record any document to show that the mother of petitioner no. 1 is the owner of the tyre business at East of Kailash. However, the respondents have also failed to produce any documents showing that the said business belongs to petitioner no. 1. Even if it is presumed though denied by the petitioner no. 1 that he is having tyre business at East of Kailash, there is nothing to stop the petitioner no. 1 from having his own business from E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 24 of 32 the premises owned by him. Similarly, petitioner no. 2 cannot be forced to continue to be an employee of other company nor the wife of petitioner no. 2 can be forced to continue to work as and employee / salaried person when they have their own premises from where they can start their own independent business. Reliance in this regard can be placed upon the following case laws. In Faruk Ilahi Tamboli v. B.S. Shankarrao Kokate (2016) 15 SCC 431; Dina Nath v. Subhash Chand Saini (2014) 11 SCC 20; Bhupinder Singh Bawa v. Asha Devi (2016) 10 SCC 209, it is held that the plea that the landlord has been carrying on business along with other family members from other premises and earning salary/profits therefrom is no ground to grant leave to defend to the tenant as the landlord is fully entitled to carry on separate business from the premises which were let out long back and the tenant has no locus to dispute the same. In Anil Bajaj v. Vinod Ahuja (2014) 15 SCC 610 it has been held that it is not impermissible for the landlord to carry on business from several premises and that it is not for the tenant to dictate to the landlord how the property belonging to landlord should be utilized by him for the purpose of his business and cannot be a reason for grant of leave to defend. In Sarla Ahuja v. United India Insurance Company Ltd. (1998) 8 SCC 119 it has been held that Rent Controller shall not proceed on the presumption that the requirement of the landlord is not bona fide and that when the landlord shows Prima facie case, a presumption that the requirement is bona fide is to be drawn.
32. Another contention raised by the respondent is regarding the E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 25 of 32 experience and the technical know how to establish a computer business available with the petitioners. It is alleged that the petitioners have no experience in the field of computers. However, the petitioners have categorically deposed about their educational qualifications as well as the educational qualifications of Smt. Kokila Goel i.e. the wife of petitioner no. 2. Reliance in this regard is placed upon Aero Traders Pvt. Ltd. v. Mohan Singh, 2014 (140) DRJ 560, wherein it is held that no experience is required to start a new business and 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 the premises is neither bonafide nor genuine. Same has been reiterated in the case law Ram Babu Aggarwal (supra) relied upon by the petitioners.
33. Another contention of the respondents is that the petitioners after obtaining possession of the tenanted premises plan to demolish and re develop the same into a big commercial complex. However, the said contention of the respondent is without any substance as if the petitioner tries to do such act, the respondent is very well protected u/s 19(2) of the DRC Act, for repossession of the premises. Thus, the bonafide requirement of the petitioners for the tenanted premises for the purpose of their business stands duly proved.
Alternative suitable accommodation.
34. It is submitted by the respondents that the petitioners are in possession and occupation of the following properties as alternate suitable accommodation available to them.
E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 26 of 32(i) The entire ground floor of the suit property is in possession and occupation of the petitioners. The petitioners have made a false statement that a major portion of this ground floor is in occupation and use of their fathers as tenants, who are carrying on business therefrom by the name "Goel Motor Works'. It is submitted that prior to the filing of the present petition, the petitioner had filed another petition for eviction under Section 14(1)(e) of the Delhi Rent Control Act in which the petitioners did not even make a reference of the ground floor and as respondents disclosed in their affidavit in that petition about the petitioners also owning and possessing this ground floor, hence, in the present petition, the petitioner have although admitted their ownership, but have falsely claimed that the possession is with their fathers. Originally, the said ground floor was under the tenancy of the fathers of the petitioners who were in its actual use and possession and from the date, petitioners claim to have purchased the entire property including the premises in suit, the petitioners are having complete access to the same and are in its complete use, occupation and possession. No particulars of the eviction proceedings filed by the petitioner no. 2 Shri Trilok Chand (deceased) who was allegedly subtenant under Shri Tara Chand Goel (deceased), its number, pending in which Court, etc. and when they were instituted and what is the present status of the said proceedings have been disclosed. The alleged plea of the tenancy/ sub tenancy with respect to the Ground floor of the suit property is absolutely false and incorrect.
35. On the other hand the petitioners have stated that a look at the site E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 27 of 32 plan of the premises in suit which is neither disputed nor denied by the respondents reveals that the total area of the land on which the building in reference is built, is hardly 65 sq. meters. It is reiterated that the petitioners do not have available with them, any other reasonably suitable accommodation / premises for their own use and occupation, either in the building in reference or in the vicinity of this building. The entire ground floor of this building is tenanted since prior to 1990. The entire mezzanine floor is in the tenancy of M/s Goel Motor Works since prior to the day the petitioners were born. This partnership firm, M/s Goel Motor Works comprises of two partners, namely the fathers of the two petitioners herein. The respondents have failed to produce any document or photograph to show that the ground floor is in the possession of the petitioners as alleged by the respondents. Nor the respondents have led any evidence in this regard. Hence, the said submissions of the respondents regarding occupation of the petitioners of the ground floor is found to be false.
(ii) It is submitted that the petitioners are also in absolute and exclusive possession and occupation of the entire mezzanine floor and second floor of the suit property. The existence of these floors is established from the site plan filed by the petitioners alongwith the present petition. The petitioners are also in absolute and exclusive possession and occupation of the terrace which also has a constructed store on the said floor of the building.
In reply PW1 has stated that the entire ground floor, entire E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 28 of 32 mezzanine floor, entire second floor of the suit property are tenanted. The petitioners do not have available to them even in inch of the space on the ground floor or anywhere else of the suit property. The fathers of the petitioners have been carrying on business for the last several decades from the abovesaid major portion of the basement, ground and entire mezzanine floor, since prior to the day on which the petitioners were born. The entire second floor also is in use and occupation of the families of the father of the petitioners for storing their obsolete items and records which they are not willing to destroy. The respondents have failed to lead any evidence or produce any documents to show that the mezzanine or the second floor is lying vacant or can be used as alternate suitable accommodation by the petitioners. Hence, their submissions have only remained bald assertions. Moreover, the second floor of the premises cannot be considered to be more suitable as compared to the first floor. Similarly petitioners cannot be forced to work from the mezzanine floor or the suit property when they have the first floor i.e. the tenanted premises in their own name. Suitability of the premises is the prerogative of the owner / landlord to decide.
(iii) Further, it is submitted that besides the aforesaid building, the petitioners are also in possession and occupation of property bearing no. 252E, Sant Nagar, East of Kailash, New Delhi. The said property is a fully developed and constructed property in 100 sq. yards, which has a huge basement, ground floor, first floor, second floor, third floor alongwith terrace. This property is owned by Smt. Anita Goel, the mother E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 29 of 32 of petitioner no. 1 and is available to both the petitioners in its entirety. Some portion of this East of Kailash property is being used by the petitioner no. 1 for carrying on the business of automobile tyres and tubes, which is his own full fledged business, which he is falsely claiming to be his mother's and falsely claiming to be working as her employee in that business and getting salary. It is submitted that a good size portion, atleast of the size of the premises in suit has been always and continues to be available to the petitioners from out of the said property. It is submitted that this property is located in South Delhi and can cater to the entire South Delhi which also has similar GST requirements of computer which the petitioners want to work on under the purported proposed business.
In reply, the petitioners have stated that they jointly or severally, have no right, title or interest in the property bearing no. 252E, Sant Nagar, East of Kailash, New Delhi110048. One half portion on the ground floor (built on land admeasuring less than 100 square yards) belongs to and vests jointly in the two mothers of the two petitioners. The basement floor below this portion, less than one half in size on the left side belongs to the mother of the petitioner no. 1, in which business goods, tyres, tubes, etc. are stored / kept. The rest of the building, including the basement, ground, first, second and third floor do not belong to or vest with anybody from amongst the members of the families of the two petitioners herein. The mother of the petitioner no. 1 namely Smt. Anita Goel is carrying on her business from the aforesaid site. Even E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 30 of 32 otherwise, the tenanted premises located at one of the corners of the walled city of Delhi are much more ideally located visavis, the afore said accommodation at 252E, Sant Nagar, East of Kailash, New Delhi.
36. It is admitted by the respondents that the said property is not owned by the petitioners. Once, the petitioners have the suit property which includes the tenanted premises in their ownership they cannot be forced to work from the premises owned by their mother. In the case of Sait Nagjee Purshottam and Co. Ltd. v. Vimalabai Prabhulal (2005) 8 SCC 252 it is held that it is always the privilege of landlord to choose the nature and place of business Tenant cannot dictate terms to landlord and advice him what he should do and what he should not to do. It is not for the tenant to dictate to landlord as to how he has to run or adjust his business. Reliance is also placed upon M/s Bajaj Associates v. Vinod Kumar 2008 (4) CCC 442 in this regard.
No other premises is stated to the available with the petitioners in Delhi.
37. Further it is averred by the respondents that the premises in suit being situated in a slum area and Section 19 of the Slum Areas (Improvement and Clearance) Act 1956 bars the institution of any proceedings for obtaining any decree or order for the eviction of the tenant from any building or land in a slum area without the previous permission in writing of the competent authority appointed under the said Act. In reply petitioners have stated that it is well settled that while instituting an eviction petition, such as the present one, the landlord is not E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 31 of 32 required to obtain from the office of Competent Authority (Slums) at Delhi, any requisite permission to institute the eviction petition. It has been held in Madan Lal Gupta v. Ravinder Kumar 2000 (2) RCR 698 (SC)/ 17(1980) DLT 344 that the Slum Act is not applicable for filing eviction petition under Section 14(1)(e) of the Act. Hence, the said contention of the respondents is not found tenable.
38. Thus, in totality of the discussions made above, the petitioners have successfully proved all the essential ingredients of Section 14 (1) (e) of the DRC Act. Accordingly, the eviction petition filed by the petitioners against the respondents u/s 14 (1) (e) of the DRC Act, is allowed. Petitioners is held entitled for recovery of the tenanted premises, i.e., 397680, First Floor, Bazar Ajmeri Gate, Delhi110006 as shown in red colour in the site plan annexed alongwith 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. Keeping in view the facts & circumstances of the case, no order as to costs. SUSHEEL Digitally signed by SUSHEEL BALA BALA DAGAR Date: 2018.12.12 DAGAR 18:47:04 +0530 Announced in open Court (Susheel Bala Dagar) on 10th Day of December, 2018 Pilot Court, CCJ cum ARC(Central) Tis Hazari Courts, Delhi.
(This judgment contains 32 pages.) E. No. 799/17 Tarun Goel v. Gurbachan Singh Dhingra Page 32 of 32