Delhi District Court
Sanjeev Singhal vs Mohd. Shamim on 8 March, 2021
IN THE COURT OF MS. ADITI GARG
SCJCUMRC (CENTRAL): TIS HAZARI COURTS: DELHI
RC/ARC No. 23/21
Sanjeev Singhal
S/o Sh. Mahanand Prasad Aggarwal
R/o H. No. 9/10, Saraswati Kunj,
8, Sham Nath Marg, Alipur Road
Civil Lines, Delhi110054 ..... Petitioner
VERSUS
Mohd. Shamim
Shop No.2472, Sadak Prem Narain
Churi Walan, Bazar Sita Ram
Delhi110006 ..... Respondent
ORDER
1. Vide this order I shall decide application for leave to defend, filed by respondent in eviction petition filed by petitioner u/s 14(1)(e) read with Sec. 25B of Delhi Rent Control Act (in short DRC Act) with respect to shop no 2472, Sadak Prem Narain, Churi Walan, Bazar Sita Ram, Delhi110006, as shown in red colour in the site plan, hereinafter referred to as the tenanted premises.
Briefly stated, it is stated that petitioner is the sole and absolute owner and landlord of entire property bearing nos. 2472 to 2490, Sadak Prem Narain, Churi Walan, Bazar Sita Ram, Delhi110006 (hereinafter referred to as the "larger property" for short) which was purchased vide registered sale deed dated 25.08.2003 bears document no. 5727 in Book No. 1, Volume No. 10813 on page nos. 181 to 189 with the office of SubRegistrar, Delhi and shop no. 2480, Sadak Prem Narain, Churi Walan, Bazar Sita Ram, Delhi110006 is in possession of respondents (hereinafter referred as tenanted premises) from Delhi Yarn Merchants Charitable Trust ( hereinafter referred to as The Trust). The plot size of the larger property is about 908.75 sq. Yds. Except for the shops situated at ground floor, there is no other construction / built up structure in the larger property. Previously, there were two small shops bearing nos. 2488 and 2490 on ground floor and partly built up first floor in the larger property, which got damaged with passage of time RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 1 of 23 and fell of their own. There was also a small basement in the larger property which had to be closed by filing the same due to structural stability issues of the larger property. The larger property is occupied by various old tenants for nonresidential purposes. There is a small shop bearing no. 2483 around 5.25 sq. Yds is in the possession of petitoner and it is impossible for petitioner to start the intended business from the said shop. The petitioner is engaged in the business of marketing / trading of pan masala in partnership with M/s Lotus Enterprises since last various years, however, petitioner does not intend to continue with this partnership business any further due to personal reason. Therefore, petitioner bonafide needs and intends to start his independent business of marketing and trading of pan masala and other allied items like betel nut, catechu, cardamom etc. and also for marketing, storage, pantry and toilets for the staff members, for which there is requirement of sufficient space and as such, the petitioner bonafide requires eviction of different tenants who are occupying various tenanted portion situated in the larger property for carrying out the said business.
It is stated that the petitioner needs ample space for display of different varieties of various items in which the petitioner would deal. It is submitted that the articles in respect to which the petitioner shall conduct business are required to be properly displayed so that the customers can easily see, compare and select the same before finalizing the items / goods to be purchased as per their individual and peculier requirements / needs which display requires considerable space. The petitioner also needs sufficient space for packing and bulk storeage of such items / goods. As such, the suit premises let out for non residential purposes is required bonafide by the petitioner for the purposes of carrying out his indepdent business activities. The petitioner does not have any other reasonable suitable commercial accommodation available to him on the ground floor. Therefore, petitioner is constrained to seek eviction of all the tenants who are occupying different portions of the larger property, so that the same can be utilized by the petitioner. Apart from the present eviction petition, the petitioner has also filed separate eviction petition against all the other tenants who are occupying different portions of the larger RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 2 of 23 property in as much as the entire space occupied by all the tenants is bonafide required by the petitioner. Based on said averments, he prayed for eviction of respondent from tenanted premises in question.
2. Respondent after receiving summons in prescribed proforma filed application for leave to defend accompanied with his affidavit within statutory period of 15 days from the date of service. In the affidavit of respondent accompanied with application for leave to defend, following grounds were sought by him for contesting present eviction petition:
(a) That there is no relationship of landlord and tenant between the petitioner and respondent. Neither the petitioner nor the predecessor in interest of the petitioner is the landlord and the respondent has never tendered rent to the petitioner. The petitioner has no locus to file the eviction petition . The petitioner had never served a notice on the respodnent after purchasing the property in 2003 neither the Trust has served any notice of attornment. That the respodnent and his predecessor in interest is occupying the tenanted premises for last 50 years as the predecessor in interest had paid pagree amount of Rs 5000 and became the owner of the property and has been operating from the shop since then without any hindrance. That house tax receipt is also in the name of respodnent and electricity meter is in the name of father of the respodnent.
b) That petition filed by petitioner is false, frivolous, baseless and the same has been filed with malafide intention. That the ownership documents filed by the petitioner cannot be relied upon as the property is Heritage property, and the same cannot be sold, and no construction work can be taken place at the suit property. The sale deed of 2003 is fabricated. It is further stated that the tenanted premises is situated in a narrow lane and therefore not suitable to run a business.That the sale deed executed in favour of the petitioner by The Trust is without any ownership, as the property has been declared as heritage property, and therefore the said sale deed is without ownership.
RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 3 of 23c) That the rent receipt furnished by the petitioner are forged .
d) That the petitioner has several properties available. That the petitioner has property at Hamidpur and another at B/153, West Jyoti Nagar, Shahadra, East Delhi110032, which are more suitable.
e) That petitioner has failed to file any document to show that what nature of business they have been doing for the last years and what now they are expecting to improve the business. That petitoiner has falsely stated that he does not have any reasonably suitable space except the property in question in Delhi.
3. In response to the same, petitioner filed reply alongwith counter affidavit denying the version of respondent and reiterating his version. And denying the version of the respondent. Petitioner has denied that the rent receipts are fake. It is further stated that the property at Jyoti Nagar had been sold out 10 years ago,and if the respondent disputes the fact, he is free to occupy the Jyoti Nagar property. It is reiterated that the tenanted premises is situated closer to the residence of the petitioner and therefore suitable to the petitioner to run his business.
4. Rejoinder to the reply to leave to defend application has been filed by the respondent, wherein the respondent has denied the contentions made by the petitioner in his reply / counter affidavit to leave to defend application, reaverring what was averred by him in leave to defend application.
5. Arguments on leave to defend application were addressed by counsel for both the parties. I have heard the submissions of counsels for both the parties and have gone through the material on record.
6. I have carefully perused the material on the record and heard the submissions of the respective Ld Counsel for the parties.
7. Before proceeding further, let us examine the relevant law.
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 RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 4 of 23 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 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.
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.
8. The Delhi Rent Control Act was enacted to balance the rights of the landlord and the tenant. Section 14 (1) (e) DRC Act entitles the landlord to file a suit for eviction showing his bonafide requirement when he has no other alternate suitable accommodation so as to fit in his bonafide requirement. This Section is controlled by procedure enumerated in Section 25B DRC Act, which states that the summary procedure is to be followed and leave to defend is to be granted only when the tenant has been able to raise any defence, which if proved, would disentile the landlord of the eviction relief.
9. I shall discuss the defences raised by the respondent hereinunder : Ownership of the petitioner and existence /non existence of landlordtenant relationship between the petitioner and the respondent The respondent had disputed the ownership of the petitioner and the Trust. The respondent had further denied the landlord/tenant relationship between the RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 5 of 23 parties, and had asserted his ownership right over the property on the ground that his predecessor in interest had taken the same on payment of Rs 5000 as pagri and since then running the business from the tenanted shop without any hindrance. He had further relied upon electricity bill in the name of his father, and a and house tax receipts in the name of the respondent . The respondent had taken the plea that the petitioner and the Trust had never attorned him and had never collected rent from In the present case, the respondent has asserted his ownership right on the basis of pagri amount. As far as payment of security/pagree amount is concerned, it has been held in case of Satish Jain v. Tara Devi in RC. REV. No. 595/2012 decided on 05.11.2014, by the Hon'ble Delhi High Court that payment of any premium does not vests any right in the tenant. Section 13 of the Act provides that if a landlord has illegally received any monies in the form of premium, then within one year of making the payment, the tenant can seek recovery of the same and not thereafter. In any case even for sake of arguments we presumed that any premium was paid, nowhere does the law provides that after payment of such an amount, the tenant cannot be evicted from the suit premises, if there is found a bonafide need for the tenanted premises. Even otherwise, as per the the landmark verdict of the Apex court in Suraj Lamps V State of Haryana(2012) 1 SCC 656 , and the provisions of sale of immoveable property as contained in Transfer of Property Act, transfer of ownership can take place only if the sale deed is registered. It has been held in Suraj Lamps & Industries Pvt Ltd (supra) : " Immoveable property can be legally and lawfully transferred/ conveyed only by a regiatered deed of conveyance. Any transfer without registered deed of conveyance cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold proerty but also to transfer of leasehold property."
In the case at hand, the respondent had not even disclosed from whom the shop in question premises was taken on payment of pagree. It is a well settld law that the person disputing the title of the other had to reveal who was the owner from RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 6 of 23 whom he derived his title. The respondent had denied the ownership of the predecessor in interest of the petitioner, however, he had also not stated as to who was the owner if Trust was not the owner. The plea of the respondent with respect to payment of pagree amount appears to be sham on the face of it.
As regards payment of house tax by respondent is concerned, it has been held by the Apex court in Sawarni V Inder Kaur and others, 1996, and in Suraj Bhan and Others V Financial Commissioner , 2007, that mutation of entries in Revenue Record and payment of house tax does not create or extinguish title of ownership in any particular immoveable property. It does not raise any presumption of title of ownership. Same is the status of electricity bill payment.
Hence, one does not become owner merely by payment of house tax, etc. Therefore, the plea of the respondent that he is the owner of the property cannot be considered in the absence of any cogent document. Furthermore, the respondent himself had stated that The Trust could not have been the owner as the property has been declared as heritage. For the sake of arguments, If the plea of the respondent is to be believed, then even the respodnent cannot be the owner. The respondent has been unable to prove any bar on sale of the tenanted premises.
The respondent has challenged the ownership of the Trust.
The petitioner had purchased the tenanted shop through registered sale deed from The Trust.
In Prem Singh and Others V Birbal and Ors, 2006, SC, it has been held that 'there is a presumption that a registered document is validly executed. A registered document, therefore, would be prima facie would be valid in law. The onus to proof, thus, would be on a person who is who is alleging otherwise."
Recently in Sangita Mundhra V Madhurica Mundhra CS(OS) No 343/2017 decided on 7.5.2019 by Delhi High Court, it has been held: RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 7 of 23 " There is a presumption that a registerd document is validly executed. A registered document therefore, prima facie woudl be valid in law. The onus of proof, thus would be on a person who leads evidence to rebut the presumption.
In Satya malhotra and Ors V Mohinder Singh Arora, 81 (1999) DLT 627, Hon'ble Delhi High Court had held: I havegiven my careful consideration to the argumenst advanced by learned counsel for both the parties. Let me first deal with the plea of ownership which has beenm disputed by the petitioner. The challenge to the sale deed executed on 10.9.1981 by Dr Diwan Singh in favour of the mother of the respondent Smt Harbans Kaur is not open to chalenge. The said sale deed was a duly registered document. The rent court is not a court to decide title of the parties.It is a well settled law that a tenant cannot challenge the title of the subsequent purchaser.
This law has remained the same even till date, and there has been no challenge to the Sale deed in any court of law.
Perusal of the sale deed dated 25.8.03 reflects name of Mohd Shamim as tenant in shop no 2472, which is the shop in question in the present petition as well. Counterfoil of rent receipt has been filed by the petitioner which is in the name of Mohd Shamim, dated 24.5.2014. Respondent had disputed the rent receipt, however mere denial is not enough in view of the registered sale deed .
As far as defence regarding non attornment is concerned, it has been held : "It is immaterial that the respondent /tenant attorns to the respondent/ landlady as landlady or not, as law does not require any act of attornment. 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/landlady any attornment by the tenant to the petitioner/ landlady 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 RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 8 of 23 Tower Pvt. Ltd. (2013) 199 DLT (CN) 25; Ambica Prasad v. Mohd. Alam (2015) 13 SCC 13.
Recently, in Harvinder Singh V M/S Paradise Towers Pvt Ltd CS(OS) 3260/11, decided on 14.9.2018, by Hon'ble Delhi High Court, it has been held :
"Once the title in the property( in occupation of the tenant) is conveyed and which as aforesaid has been conveyed vide Registered Sale Deed, the coming into existence of relationship of landlord and tenant between the purchaser and the tenant in occupation of the property sold/ conveyed is not dependent upon attornment by the tenant of such purchaser as landlord. On such ransfer of the tenanted premises by the landlord, the transferee automatically becomes the landlord of the tenant by operation of law and the coming into being of the relationship of landlord and tenant between the transferee and the tenant in not dependent upon the overt act on the part of the tenant. In this light of the matter, the question, whether the defendant no 1 paid any rent for 2 months or not as pleaded by the plaintiff also becomes irrelevant."
The respondent had claimed that he is in occupation of the shop since last 50 years and is the owner. In this regard , reliance be placed on the recent judgment,' Ramesh Kumar Bagga Vs Kailash Makkar And Another 23.9.19, Hon'ble Delhi High Court, wherein it was held that ' Merely because tenant is in possession since 1950s, does not means he has become an owner. Once a tenant , always a tenant'.
In the present case, the petitioner has purchased the tenanted premises through registered sale deed in which name of respondent has been mentioned.It is well settled principle of law that once a tenant always a tenant and with no stretch of the imagination can be termed as owner.
The respondent being the tenant is also estopped u/s 116 Indian Evidence Act from challenging the ownership of the petitioner.
As far as challenge to the title of the petitioner is concerned, In case , "Rajender Kumar Sharma & Ors. Vs. Leela Wati & others, 155 (2008) DLT RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 9 of 23 383", it was laid down that a landlord is not required to prove absolute ownership as required under Transfer of Property Act and he is required to show only that he is more than a tenant. Same was the ratio of decision given in "Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR.
Even otherwise the petitioner herein has a registered sale deed of 2003 in his favour.
Vague plea of ownership has been taken by the respondent, which has been duly controverted by the registered documents of the petitioner.
In view of the above discussion, the defence that there is no landlord/ tenant relationship is rejected.
• Bonafide requirement of the petitioner The present petition has been filed by the petitioner for his bonafide need i.e. space required for his business of trading, marketing, storage, etc of pan masala and allied items. It is stated that the petitioner is currently a partner at M/S Lotus Enterprises , however due to personal reasons the petitioner intend to leave the partnership.
Here it is imperative to discuss the meaning of the term' bonafide' and how the term has been interpreted by our Hon'ble Apex Court and Hon'ble Delhi High Court.
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 v. 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 RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 10 of 23 bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual n eed 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 nonresidential accommodation in his occupation in the city/town is available. The judgment/order of 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."
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" 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 RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 11 of 23 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.
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 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.' In Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby it was held that : ".....The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself....".
RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 12 of 23Coming to the facts of the given case, the respondent in the present case had stated that the petitioner's need is not bonafide , however, it is not clear as to on what basis the respondent had stated so. The only ground to have been taken by the respondent is that the petitioner is a man of means and has booming business.However, the respondent had not substantiated his defence. Otherwise also, even if the version of the respondent is to be believed, only because the petitioner is a man of means does not mean that he would never be entitled to eviction for his personal use. The need of the petitioner is to set up independent business for himself.
The petitioner had stated in the present case that due to personal reasons he wishes to leave his existing partnership and start his business from the tenanted premises Practically, to restrict the petitioner from running his independent business, on mere vague pleas of the tenant, would be unjust and unfair and would go against the legislative intent behind the enactment of DRC Act.
In M/S Sait Nagjee Purushotham and anr s Vimalabai Prabhulal and ors (2005) 8SCC 252, it has been held:
" It is always the prerogative of the landlord that if he requires premises in question for his bonafide use for expansion of his business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad, therefore its not genuine need. It is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not do, It is always the privilege of the landlord to choose the nature of business and the place of business.
In Raj Kumar Khanna V Parduman Singh 204(2013) DLT312, it was held: It has rightly been decided by the Apex Court in the case of Shjamshed Ahmad and ors V Tilak Raj ( deceased) 152 (2008) DLT 301 (SC), wherein the Apex court affirmed the order of the trial court which was reversed by the HC, that the requirement of section 14(1)(e) is 'bonafide requirtement' and it has to be seen as RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 13 of 23 per the requirement of the petitioner(landlord), even if the petitioner is very rich having other properties at different places that does not affect his requirement of the premises, as alleged in the petition.And the leave to defend was dismissed.' Similarly, in Aero Traders Pvt Ltd V Mohan Singh and Anr, Delhi High Court, 2.1.2014, it has been held that financial status of the landlord is not relevant.
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.
Supreme Court in Siddalingamma v. Mamtha Shenoy (2001) 8 SCC 561 held that the "concept of bonafide need or genuine requirement needs a practical approach instructed by the relatities of life; an approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises, so as to protect the tenant's continued occupation in tenancy premises. Notwithstanding the respondent/ landlord having large part of the portion of the ground floor available to him, allowing the tenant to continue in the premises in occupation of one of the shops in the premises would result in loss of privacy and security to the portion of the property in possession of the respondent/ landlord and making it inconvenient for the respondent/ landlord to beneficially use rest of the property, the tenant cannot be allowed to say that the said difficulties of the respondent/ landlord can be cured by making structural changes to the property."
Thus, a person wishing to start a business for himself, cannot be restricted by the tenant or the court merely on the ground that the premises is occupied by tenants. Every person has a right to excel in life. A petitioner cannot be forced to leave the commercial property and to look for property elsewhere. Even if the petitioner is director in other companies, that cannot stop him from filing the eviction petition. If the defence taken by RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 14 of 23 the respodnent is allowed, it would cause serious hardship to the landlords and would amount to very restricted interpretation of the Delhi Rent Control Act. Bonafide need, can be in some cases, limked to financial constraints, however the fact that the petitioner/ landlord is rich or having other businesses, has got nothing to do with the need being malafide or motivated. It is not disputd that the tenanted premises herein is located in the hub of commercial area. Only because the petitioner is a man of means does not mean that he can not start independent business. Otherwise also, the respondent has the protection under section 19 of the DRC Act itself. So in case the petitioner does not utilize the tenanted premises for the bonafide need within the stipulated period,it is open to the respondent to take recourse under section 19 DRC. Hence, the bonafdie need of the petitioner cannot be rejected on criminal suspicion. Therefore the petitioner can carry business from number of properties, and that can not be the ground for dismissing the eviction petition or for granting leave to defend to the respondent, as held in Raj Kumar Khanna( supra).
In order to be entitled to leave to defend, the respondent have to produce such defence, which if proved, would disentitle the petitioner the relief of eviction. No such challenge to the bonafide need of the petitioner had been put forth by the respondent.
In view of the above judicial pronouncements and the law, it is held that the petitioner had a bonafide need for eviction petition.
Availability of alternate suitable accommodation The respondent has alleged the following properties to be available with the petitioner:
1. several properties in the vicinity and in Delhi.
2. property no B/153, West Jyoti Nagar, Shahadra, East Delhi110032.
3. Property at Hamidpur, Delhi RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 15 of 23 As regards to property at Hamidpur, the petitioner has stated that property to be a warehouse and occupied by a tenant and that the property is located far from his residence and in a village , therefore not suitable to the petitioner.
As regards the property at Shahadra, it is stated that the petitioner had already sold the property long time back and the respondent is at free will to occupy the same if he thinks the same is available.
No details of other properties has been provided by the respondent.
The following case laws on this issue further strengthen the case of the petitioner. In the judgment tiled as "Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta" reported as AIR 1999 SUPREME COURT 2507, it was held:
"...The landlord may convince the Court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come...".
As regards to property at Hamidpur, 66, it has been held, "The landlord is entitled to evict the tenant from shop which is suitable to him. Tenant cannot dictate landlord to occupy other shop which had fallen vacant but was not suitable." Habib Vs. Smt. Jayamma & Ors.,2005 (1) RCR Rent 235 Recently, in Balwant Singh @ Bsnt Singh and Anr V Sudarshan Kumar and another, as decided on 27.1.2021, held as under : RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 16 of 23 "It is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate. The legislative intent behind summary provison cannot be frustrated , without strong reason."
In Dinesh Kumar Vs Yusuf Ali AIR 2010 SC 2679, it was held that the landlord is the best judge of his need and courts have no concern to dictate the landlord as to how and in what manner he should live.
Hence, in the present case, the respondent cannot dictate the petitioner to run his proposed business from Hamidpur, or other shops. Admittedly Hamidpur is not as suitable commercially as the tenanted premises. Any person who wishes to do trading and marketing would opt for a space which would attract more customers. The petitioner cannot be forced to compromise on the business location only because the more viable location is occupied by the tenants. Even otherwise the petitioner had clearly stated in the eviction petition that he is filing eviction petition against other tenants as well, therefore his need is not limited to one shop. The petitioner has admitted that he is in possession of the open space behind the shops, however, the tenanted shop is facing the road. None of the alternate properties cited by the respondent herein can be termed as suitable to the petitioner. Mere pleas have been taken by the respondent without substantiating with any substantial document. With respect to concealment, it has been held that it is not each and every concealment which would be fatal to the case of the petitioner. A person might have 10 properties , and may not disclose them all. It is the prerogative of the landlord to use the property as per his choice and the tenant has to show how any of the undisclosed properties would have been suitably met the requirement of the petitioner. In Shri Sukhbir Singh vs Dr. I.P. Singh RC Rev.261/2010, Delhi High Court, it was held that "the contention of the respondent tenant that the petitioner did not disclose the fact of being in possession of other properties, it would suffice to say that nondisclosure of properties which were not suitable to meet the petitioner requirement is not fatal to his case".
RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 17 of 23Furthermore, In Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 405, it has been clearly held that" A tenant who alleges that landlord has at his disposal other accommodation has to place before the Ld. ARC some material to show that the landlord has a specific alternative accommodation at his disposal". Mere bald allegation with respect to availability of additional accommodation with the petitioner does not hold any basis and cannot be a basis to deny the petitioner of his right to vacate the tenanted premises for his bonafide requirement".
In view of the above judgments it can be easily inferred that the initial onus to prove is on the respondent, who at the time of filing of leave to defend, have to prima facie establish that the petitioner has alternate suitable accommodation, by way of some document/proof. Mere mentioning of alternate accommodation is not enough, as the said accommodation has to be available and equally suitable to the petitioner to fulfil his need. Mere allegation in itself is not enough. Similarly, mere allegation that the petitioner had hidden properties is not enough. The respondent had not been able to list any other property which is available to the petitioner. Otherwise also, if the petitioner does not utilize the tenanted premises for the bonafide requirement, it is open to the respondent to approach the court u/s 19 DRC. The defence regarding availability of alternate suitable accommodation is accordingly rejected .
Defence that the tenanted premises is not suitable to fulfil the need of the petitioner in terms of its ' Heritage Status' The respondent had contended that the present eviction petition is not maintainable as the tenanted premises forms part of " Haksar Haveli", hence no construction can take place so as to change/modify the heritage site. It is thus contended that the petitioner cannot run business from the tenanted premises. Number of documents have been filed by the respondent no 2 to show that the tenanted premises is part of Heritage site, where Late Sh Pandit Jawahar Lal Nehru had got married.
RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 18 of 23The respondent himself is carrying out commercial activity from the tenanted property, hence it is admitted that the propetty can be put to commercial use.
As regards the fact whether any construction, repair, modification can take place in Heritage site, reliance is placed on the relevant provisions as contained in Unified Building Byelaws applicable to Heritage Properties.
Clause 7.26 state Provision for Conservation of Heritage Sites including Heritage Buildings, Heritage Precincts and Natural Feature Areas shall be as Annexure II Annexure II, Clause 1.3 Restrictions on Development/ Redevelopment/ Repairs etc
i) No development or redevelopmentor enineering operation or additions/ alterations, repairs, renovations including painting of the building, replacement of special features or plastering or demolition of any pasrt therefof of the said listed buildings or listed precints or listed natural feature areas shall be allowed except with the prior permission of Comissioner MCD, Vice Chairman DDA/Chairman NDMC. Before granting such permission, the agency concerned shall consult the Heritage Conservation Committee to be appointed b the Govt and shall act in accordance with the advice of the Heritage Conservation Committee.
The penalties for any deviation and non compliances are also enumerated in the Annexure itself As discussed above, it is not the case or defence that the tenanted premsies cannot be put to commercial use. As regards the defence with respect to Heritage site, the petitioner can carry out such development/ redevelopment/ repairs, within the contours of the bylaws as reproduced in the aforesaid paragraph. As per Annexure II, Clause 1.3 (i), the petitioner would have to seek requisite permission of commissioner MCD, Vice Chairman DDA / Chairman NDMC, and the same shall be in consultation with the Heritage Conservation Committee, appointed by RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 19 of 23 the Government. Hence, permission of construction/ reconstruction/ repair, etc on a heritage site cannot be a triable issue while dealing with petition under DRC Act, as the appropriate authority has already been mentioned in the By laws. Furthermore, since there is a provision where permission can be granted, it cannot be construed that there is complete bar on construction etc at the heritage site.
The Hon'ble delhi High Court in Gulshan Rai V Samrendra Bose Secy and Anr I & R(2012)IV Delhi 513 had dealt with aspect relating to obtaining necessary sanction between the landlord and the municipal bodies. In the said case vide the impugned order, the Ld Trial court had granted leave to defend to the tenant on the basis that the property has heritage status and guest house cannot be run from there without any permission and no sanction had been placed on record.
The Hon'ble Delhi High Court had held: The submission of the tenant is that since 'Bengali Club has heritage status, no guest house without necessary sanction can run from there. Record shows that a guest house is being run from the portion of the disputed premises, whether it is legal or illegal is a matter interse between the landlord and the MCD; the tenant has no locus standi to challenge his illegality of running the guest house .
..... Contention of the landlord specifically in the eviction petition is to the effect that after he gets the tenanted premises vacated and after taking necessary permissions from the Department, he will get the unauthorized construction removed and thereafter after obtaining necessary permissions will expand his business of the guest house which he admittedly is carrying out from portion of the first floor. This is an interse arrangement between the landlord and the MCD/Government Body, the tenant cannot raise an issue merely because the property owned by the landlord is a heritage property he cannot run a guest house. If such an argument raised by the tenant is accepted,then this would mean that in all the cases where the landlord/owner owns heritage property, he would never be able to get his property vacated only for the reason that it has heritage status. This is definitely not the import of the Building Bye Laws which have been relied upon by the Trial court holding that triable issues have arisen.
RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 20 of 23In view of the above, the defence that the tenanted premises cannot be utilized for the bonafide need and that the eviction petition is not maintainable, is not tenable. It is for the petitioner to procure the appropriate permissions. The remedy in case of non use/ occupation of the tenanted premsies by the petitioner within the stipulated time is available to the respondent under section 19 DRC, however the tenant cannot be permitted to travel beyond that in interfere even in the aspect of construction.
It has been held in Raagavendra Kumar V Firm Prem Machinery AIR 2000 Supreme Court 534, the Honb'le SC had held that it is settled proposition of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.Neither the tenant or the court can dictate the landlord regarding the suitability of the premises or even the extent of the business proposed to be carried out.
Even otherwise , on one hand the respondent had contended that the tenanted premises is not suitable to the petitioner as it is Heritage and cannot be constructed/ reconstructed . On the other hand , the respondent had alleged that the present petition has been filed by the petition to seek eviction, reconstruct the suit property and to sell it thereafter at an exorbitant price. The respondent himself had taken contradictory pleas.
In view of the fact that there is no complete embargo on construction at the suit property and also considering the contrary stand taken by the respondent himself, the defence that the tenanted premises is not suitable, is rejected as baseless.
11. It is well settled that for leave to defend, the defence is to be of such a nature so as to disentitle the petitioner the relief. Further the defence has to be substantiated with something cogent. Mere assertions or allegations are not enough.
"All sorts of objections are generally raised whenever an eviction petition is filed by the landlord. Even the ownership of the landlord, the relationship of the RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 21 of 23 landlord tenant, the purpose of letting and bonafide requirement are denied by the tenant and fake allegations are made that the landlord has other properties. Many allegations are raised only for the sake of raising. Unless, the learned ARC scrutinizes each of the objections raised by the tenant with the help of documents and the material placed on record, the entire purpose of providing summary proceedings in respect of the eviction proceedings fails. Thus, it is incumbent upon the ARC to scrutinize all objections carefully in the light of law laid down and in the light of the material placed on record. It cannot be argued that the learned ARC was not required to go into the details of the objections and come to a conclusion on the basis of affidavits and once objections are raised leave to defend must be granted. Leave to defend can be granted only in those cases where the tenant is able to show by material on record that the petition was filed by the landlord malafidely. The facts stated by him about his age, family accommodation were false." Krishan Kumar Gupta vs. Swadesh Bhushan Gupta 2008 152 DLT 556"
It has been held in Baldev Singh v. Monish Saini, (2005) 12 SCC 778, that the legislative intent of expeditious disposal of application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation. A special category of landlords requiring the premises for their own use has been created. If there is any breach by the landlord, the tenant is given a right of restoration of possession. The landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own use only. These restrictions and conditions inculcate in strong presumption that the need of the landlord is genuine, the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant. Unless his need is bonafide, no unscrupulous landlord in all probability, under the Section, would approach the Court for ejectment of a tenant considering the onerous conditions imposed on him. This inbuilt protection in the Act for the RC No. 23/21 Sanjeev Singhal Vs. Mohd. Shamim Page 22 of 23 tenant implies that whenever the landlord would approach the Court, his requirement shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.
From the above discussion , it is held that all the defences raised by the respondent are meritless, vague and are not of the nature, which would disentitle the petitioner of the relief u/s 14 (1)(e) of the DRC Act.
15. In Labhu Lal v. Sandhya Gupta, 173 (2010) DLT 318, it was held that "Before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time, entitled the respondent to leave to defend existed. The onus is primafacie on the respondent and if he fails, the eviction follows."
16. In view of the discussion made above, the respondent herein has been unable to raise any defence which is substantial or which if proved, would disentitle the petitioner of the relief of eviction. Merely vague pleas have been taken by the respondent which are not substantiated prima facie. Since no such defence has been raised by the tenant, leave to defend is denied to him.
17. 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 However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted, shop no 2472, Sadak Prem Narain, Churi Walan, Bazar Sita Ram, Delhi 110006, as shown in red colour in the site plan, 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.
Announced in open court (Aditi Garg)
on 08th day of March, 2021 SCJCumRC (Central)
Tis Hazari Courts: Delhi
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