Delhi District Court
Courts vs Mohd. Yunus on 3 February, 2011
1
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E426/08
03.02.2011
Basheeruddin
S/o Late Sh. Abdul Majid,
R/o H.No. 2139,
Abta Mir Bukhari, Turakman Gate,
Delhi. ...Petitioner
VERSUS
Mohd. Yunus
S/o Sh. Mohd. Yusuf
R/o H. NO. 0/18, DDA Flats,
Turakman Gate, Delhi ...Respondent
Petition U/s 14 (1) (b) (d) (e) & (h) of Delhi Rent Control Act.
1. Date of institution of the case : 21.11.1995
2. Date of Judgment Reserved : 20.01.2011
3. Date of Judgment pronounced : 03.02.2011
JUDGMENT
The present petition is filed u/s 14 (1) (b), (d), (e) and (h) of Delhi Rent Control Act, 1958, herein after called DRC Act. The brief facts as stated in the petition are that the petitioner is landlord of premises no. 3179, Phatak Telian, Turakman Gate, Delhi and he let out two rooms with verandah, latrine and a kolki beneath the staircase, a part of abovesaid premises, as shown in red in the site plan. The rate of rent was Rs. 8.50/ 2 per month exclusivee of all other charges.
2. It is further stated that the respondent has sublet one room and verandah to Mohd. Karim and other Kothri and verandah to one Badshah Hussain without obtaining the consent of the petitioner in wiritng. The premises was let out to the respondent for residence but neither respondent nor any of his family member is residing therein for a period of six months immediately before the date of filing of this petitioner. Neither respondent nor any member of his family is residing in the suit premises for last many years. They are living in premises No. 0/18, DDA Flats, Turakman Gate, Delhi. It is further stated that the premises are bona fidely required by him being owner thereof, for residential purpose. The petitioner is having no other suitable premises except the H. No. 2139, Ahta Mir Bukhari, Turakman, Delhi which is very small house consisting of three rooms, latrine, bathroom and kitchen and the petitioner is having big family having six sons and four daughters, and sons of the petitioner are of marriageable age, so the premises is bonafide required by the petitioner. The respondent has acquired vacant possession of premises no. 3358, Phatak Telian, Turakman Gate, Delhi. The said premises owned by the respondent.
3. WS filed by the respondent wherein he stated that the present 3 petitioner has no locus standi to file the petition as he is neither the landlord nor the owner of the premises in question, therefore, there is no relationship of landlord and tenant between the parties. The present petition is not maintainable as the premises in question is situated in a slum area and no permission under section 19 of the Slum Area (Improvement and clearance) Act, 1956 has been obtained by the petitioner before filing of this petition. The father of the petitioner Sh. Abdul Majid has filed a petition before the competent authority for grant of slum permission claiming himself to be landlord/owner of the premises. Presuming Abdul Majid was the owner/landlord of the premises, after his death, his all legal heirs inherited the property from their father. Therefore, the petition filed by the present petitioner alone is not maintainable and, therefore, liable to be rejected for nonjoinder of necessary parties.
4. It is further stated that the premises in question were taken on rent by the grandfather of the respondent, late Deen Mohd., more than 50 years back, from Bismilha Begum wife of Zuma Baksh for commercial purposes. During the life time of the grandfather, the grandfather and the father of the respondent were doing jointly the business of selling 'Halwa' from the premises in question. After the death of Deen Mohd., the grandfather of the respondent, the father of the respondent continued the same business for 4 some time but later on the respondent and his other brother namely Mohd. Shafiq changed the business in the year 196061 and started manufacturing/repairing of electric motors etc. in the premises in question and the same business is contining in the premises till date and kept up paying rent to Bismilha Begum. Bismilha Begum died sometime in the year 1962 and after her death, nobody came to collect or claimed the rent as she, as per the knowldege of the respondent, has not left behind any legal heir surviving her.
5. It is further stated that in the year 1971, the father of the petitioner suddenly appeared and started claiming ownership of the premises in question and claimed the rent from the respondent. The respondent disputed his claim which resulted into confrontation between them and there are several occasions when the matter was reported to the police by the respondent also. After the death of Abdul Majid, the father of the petitioner with the help of other relations and gunda elements started threatning the respondent and forcibly dispossessing from the premises in question. The respondent asked his younger brother to stay in the premises alongwith doing the business for the purposes of protecting the possession from the illegal activities of the petitioner. Thereafter the nephew of the respondent who was also doing the business with the respondent as partner stayed in 5 the premises in question for sometime solely with the purposes of protecting the possession apart from doing the manufacturing business in major of the portion. Thereafter the other nephew of the respondent who is also working with the respondent is residing in the premises for more than 67 years.
6. It is denied that the premises were let out to the respondent for residence or that neither the respondent nor any of the family member is residing therein for a period of six months immediately before the date of filing of this petition nor for the last so many years. The premises in question are not required by the petitioner bona fidely as the petitioner recently sold a big flat which was allotted to him by the DDA at Turkman Gate vide Flat no. P4, DDA Flats, Turkman Gate, Delhi. Apart from this flat, another flat no. 100, Baron Road, DDA Flats, New Delhi, is in the occupation of one of the sons of the petitioner. This flat is also in the name of the petitioner. The premises in question is not required bonafidely by the petitioner nor the premises presently occupied or available with the petitoner is insufficient for the residence of the petitioner and his family members. The property bearing no. 3358, Phatak Telian, Turakman Gate, Delhi was the ancestral property which was demolished during emergency in the year 197677 and in lieu of that petitioner was allotted another house 6 by the DDA in DDA Flats, Turakman Gate, Delhi. No such property bearing no. 3358 is in existence at present.
7. Replication filed on behalf of the petitioner wherein he stated that the father of the petitioner Sh. Abdul Majid was the owner of the premises in question and after his death all his legal heirs became coowners of the premises in question and the present petitioner is one of them. All other averments made in the WS filed by the respondent are denied.
8. In order to prove his case petitioner examined himself as AW1, AW2 Sh. Sulab Chand, Record Keeper, Competent Authority Slum, AW3, A.Rehman, UDC, Office of SubRegistrar, Kashmiri Gate, AW4, Surinder Singh, LDC in DDA (Slum).
9. The rent deed exhibited AW1/A, site plan exhibited AW1/B, certified copy of the judgment exhibited AW1/C, true copy of the order which was announced on 13.07.71 by Sh. P.R.Varswhneya, UPCS, Competent Authority (Slums) in the case titled Abdul Majid Vs. Mohd. Yunus, CA./1/10334/70 exhibited AW1/D, One original site plan annexed with the sale deed which is registered with the office of sub registrar exhibited AW3/1, photocopy of the allotment letter exhibited PW4/1, 7 photocopy of letter was sent to the respondent by the MCD, Slum and JJ deptt. exhibited PW4/2, photocopy of the affidavit of the respondent submitted to DDA exhibited P4/3, photocopy copy of the undertaking filed by the respondent exhibited PW4/4.
10. On the other hand respondent has examined one Sh. Mohd. Iqbal son of Sh. Mohd. Safi and has filed his evidence by way of affidavit which is Ex. RW1/1. Respondent has filed his evidence by way of affidavit but did not tender it in the court. Hence the same cannot be considered.
11. The copy of registration certificate of business of respondent exhibited RW1/2, The document which were put in the cross examination of RW1 by the petitioner is copy of challan for the deposit of rent w.e.f 1.09.2002 to 31.01.2004 exhibited RW1/P1.
12. I have heard the Ld. Counsels for the parties and gone through the entire record carefully.
13. Ld. Counsel for the respondent relied upon the following rulings :
(i) Bishamber Nath and others Vs. Urmila and others, 43 (1991) Delhi 8 Law Times 50.
(ii) Mohd. Usman and others Vs. Mohd. Siddique and others decided by Hon'ble Supreme Court of Indian on August, 26 1987
14. Ld. Counsel for respondent submitted that the premises in question are located in slum area but the petitioner has not obtained the permission from the Competent Authority, (Slum Department) under section 19 of the Slum Area (Improvement and clearance) Act, 1956. Ld. Counsel for the respondent further submitted that the permission obtained by father of the petitioner in the year 1971 is of no help to the petitioner as the present petition was filed in the year 1995 about 24 years after the permission obtained under the Slum Act. Ld. Counsel for petitioner submitted that the permission obtained by the father of the petitioner against the present respondent, therefore, there is no need for the petitioner to seek permission again under section 19 of the Slum Area (Improvement and clearance) Act, 1956.
15. It was held by Hon'ble Delhi High Court in Bishamber Nath & others Vs. Urmila and others (supra) that "The judgment of the Supreme Court in Mohd. Usman case is very clear even if the gap between the two orders is very short fresh permission has to be obtained. The permission granted by 9 the Competent Authority under the Act gets exhausted when a final order is passed by the appropriate court either allowing or dismissing the eviction petition. If the landlord has to file a fresh petition it is necessary to him to obtain fresh permission u/s 19 of the Act for the second time before filing the second eviction petition".
16. It was held by Hon'ble Supreme Court in Mohd. Usman and others Vs. Mohd. Siddique and others decided on August, 26 1987 that "Section 19 of the Act confers a protection on the tenant. Permission is a prerequisite for institution of the proceedings for eviction. The permission which had been obtained on the earlier occasion was on the basis of a set of facts then prevailing; on a consideration of those facts, and after hearing parties, permission had been given. The permission must be taken to have been exhausted when the earlier proceeding was taken. Admittedly there has been a gap of few years between that permission and the institution of the present eviction proceeding. If opportunity had been given to the tenant before the appropriate authority under the Act in the matter of grant of permission it would have been open to the tenant to satisfy the authority that circumstances had changed a permission should not be granted. Since legislation intends to confer a protection on the tenant and makes permission a condition precedent to the institution of the eviction 10 proceeding, we are inclined to agree with the counsel for appellant that a fresh permission should have been obtained before the second eviction proceeding was initiated. Ld. Counsel for the respondent relied upon the decision of the Delhi High Court in Hari Rajkishore Aggarwal Vs. Raj Kumar (1978) (2) Rent Control Reporter 680, where a contrary view has been taken. For the reasons we have indicated above, we do not think that the decision lays down the correct law".
17. It is not in dispute that only the father of the petitioner has obtained a permission from the Competent Authority under section 19 of the Slum Area (Improvement and clearance) Act, 1956 and the petitioner has not applied for any such permission. The father of the petitioner obtained the permission in the year 1971 and the present petition was filed in the year 1995. Thus, there is a gap of about 24 years between the grant of permission to the father of the petitioner and filing of the present petition by the petititioner. The period of 24 years is very long period. The circumstances changes upto a great extent in a period of 24 years. The father of the petitioner obtained the permission on the basis of the fact which were prevailing in the year 1970/71. On the consideration of those facts and after hearing the parties, the permission had been given. The present petition was filed in the year 1995. At that time the facts and circumstances have been 11 totally changed. If, the petitioner had applied for permission before filing the present petition, the respondent could satisfy the authority that circumstances has changed and permission should not be granted. The DRC Act is generally for the protection of tenant and permission under section 19 of the Slum Area (Improvement and clearance) Act, 1956 a condition precedent to the institution of the eviction proceedings, therefore, relying upon the Bishamber Nath & others Vs. Urmila and others (supra) and Mohd. Usman and others Vs. Mohd. Siddique and others, I am of the considered view that a fresh permission should have been obtained by the petitioner before filing the present eviction petition but as no such permission has been obatined by the petitoner, therefore the present petition is not maintainable u/s 14 (1) (b), (d), (h) of DRC Act. It is well settled law that no permission under section 19 of the Slum Area (Improvement and clearance) Act, 1956 is required for eviction petition u/s 14 (1) (e) on the ground of bonafide requirement.
18. The present petition is filed u/s 14 (1) (b), (d), (e) and (h) of DRC Act. To establish the grounds under these provisions it is necessary that first of all the petitioner prove himself as landlord qua the respondent i.e establish relationship of landlord & tenant between them. The petitioner claims himself owner of the suit premises in his evidence whereas no such 12 specific claim made in the petition. AW1 deposed that his father purchased the property from Sh. Muneer who was son in law of Ladoo Wali Bismillah. Muneer sold out the property in the capacity of son in law of Bismillah. The petitioner failed to prove sale deed through which the premises in question was purchased by the father of the petitioner.
19. The petitioner belatedly had moved an application u/s 151 CPC to produce the sale deed and sought permission to be allowed to prove the same as per law. However, that application was dismissed by this court on 19.01.2010. Hence, the petitioner failed to prove that his father had purchased the suit premises and after his death he became the coowner by operation of law. However, it is well settled law that landlord is not required to prove absolute ownership under the provision of Delhi Rent Control Act. Therefore, it has to be considered whether petitioner is landlord of the premises in question qua the respondent. The respondent has disputed that petitioner is landlord of suit premises. Therefore, first of all, petitioner has to prove that he is landlord of suit premises.
20. The petitioner, AW1 desposed in his evidence that premises no. 3179, Phalak Chain, Turkman Gate was rented out to Yunus. Rent deed was also executed at the time of creation of tenancy, which is Ex. AW1/A. 13 Initially the rent was Rs. 8.50/ per month later on it was increased to Rs. 20/ per month. AW1 further deposed that rent agreement was executed when rent was increased to Rs. 20/ per month. AW1 deposed in his cross examination that he does not remember whether this fact was mentioned in the petition or not that one rent agreement was executed between him and respondent, when tenancy was created. He also does not remember the year in which rent agreement was executed but as per AW1 it was before 1970. AW1 further deposed that the respondent became tenant and came into possession of premises in dispute after execution of rent deed. AW1 further deposed that respondent has never paid rent to him. Respondent has not paid the rent even on the day the rent agreement was executed.
21. There are many contradictions in the evidence of AW1. AW1 deposed that rent agreement exhibited AW1/A was executed at the time of creation of tenancy. In the same breath he deposed that initially the rent was Rs. 8.50/ per month, later on it was increased to Rs. 20/ and rent agreement was executed when rent was increased to Rs. 20/. This shows the petitioner is not sure when rent agreement was executed. A very important question arise if rent agreement was executed before 1970 as deposed by petitioner then why it was not mentioned in the petition or in the replication. Para 14 of the petition requires to state the date of tenancy and 14 date of agreement, if any, but neither any date nor any rent agreement was mentioned in para 14 of the petition. From this it is evident that production of rent deed is an after thought. The deposition of AW1 is not trust worthy. To be a landlord it is necessary that the person should be owner of the premises or let out the premises to the tenant. The petitioner failed to prove his ownership. The petitioner even does not know when he let out the premises to respondent and how it was let out. The petitioner has even failed to identify his own thumb impression on the rent agreement exhibited AW1/A. The petitioner even did not identify the thumb impression/signature of respondent in exhibited AW1/A. Thus petitioner failed to prove rent agreement.
22. In view of the above discussions I am of the considered view that the petitioner has failed to prove that he is landlord qua the tenant in respect of the premises in question. However, if it is assumed that the petitioner is landlord, though not proved, then the petitioner has to fulfill the ingredients of all the provisions.
Grounds u/s 14 (1) (b) of DRC Act.
23. Section 14 (1) (b) of DRC Act reads as under : "The tenant has, on or after the 9th day of June, 1952, sublet, 15 assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord".
24. The case of the petitioner regarding subletting is that the respondent has sublet one room and verandah to Mohd. Karim and other room and verandah to Badshah Hussain without obtaining the consent of the petitioner in writing. The respondent has denied these averments of the petitioner. The respondent has stated in written statement that he was under
apprehension of forcible dispossession from the hands of the petitioner, therefore, he asked his younger brother to stay in the premises. Thereafter the nephew of the respondent who is also doing the business with the respondent as partners stayed in the premises for sometime. Thereafter the other nephew of the respondent who is also working with the respondent is residing in the premises for more than 67 years. Not only this, RW1 Mohd. Iqbal has deposed that he and other two sons of Mohd. Shafiq are doing the business of repairing electric motors in the suit premises. RW1 has admitted in his cross examination that at present he is in occupation of suit premises and doing his job. He is also admitted that he is having his ration card issued at the address of the suit premises. The electricity meter is in the name of his father, Mohd. Shafiq. From all these facts, it is still clear that the respondent has sublet the premises and he is neither legal 16 possession nor physical possession of the suit premises. Grounds u/s 14 (1) (d) of DRC Act
25. Section 14 (1) (d) of DRC Act reads as under : "The premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof".
26. The first and foremost requirement for an eviction u/s 14 (1) (d) of DRC Act, is that the petitioner has to prove that the premises were let out for residential purpose only. As discussed above the petitioner is not aware when the suit premises were let out to the respondent. He made contradictory statements. On the other hand RW1 has stated that the premises in question was let out more than 56 year back to Deen Mohd., Grand father of the respondent by Smt. Bismillah Begum W/o Zumma Baksh for commercial purposes. The grand father of the petitoner and his father were doing the business of selling Halwa from the premises in question. No suggestion was given to RW1, in his cross examination, that the premises in question were not let out to Sh. Mohd. Deen, grand father of the petitoner for commercial purposes. Nor any suggestion was given that 17 the premises was let out to respondent for commercial purposes. Thus the deposition of RW1 that the premises were let out for commercial purposes goes unrebuted. If the petitioner is not aware when the premises were let out then how does he know the purpose of letting. Hence the petitioner has failed to establish that the premises in question was let out for residential purpose only. The grounds u/s 14 (1) (d) of DRC Act are not proved.
Grounds u/s 14 (1) (e) of DRC Act.
27. Section 14 (1) (e) of DRC Act reads as under : "The premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation".
28. As discussed above petitioner failed to prove that he is owner/landlord qua the respondent. So far the purpose of letting for bonafide requirement u/s 14 (1) (e) is concerned, after judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is also maintainable in respect of the commercial purposes. 18 So far the alternative accommodation and Bonafide requirement are concerned AW1 deposed in his evidence that he is residing with his family members at house no. 2139, Ahta Mir Bukhari, Turakman Gate, Delhi which is very small house having three bedrooms, one store, kitchen and latrine and the petitioner is having big family consisting himself, his wife and 10 children. Out of 10 children 8 are married and his eldest son is having six children, his second son is having 8 children, his third son is having 3 children, his fourth son is having 5 children, his fifth son is having 4 children, his sixth son is having 2 children, his seventh son is having 2 children and eighth son is also having 2 chilren. AW1 further deposed that he does not have any other house except said premises and he requires the premises in dispute for him and his family members. AW1 deposed in his cross examination that except Zallaludin the ration card of his children and grand children are of the address of premises in dispute. Ration Card of Zallaludin is of the address no. 100, Baron Road, DDA flats. P4 DDA Falat, turkman gate, was ealier in his name but he had sold it 1012 year back and he had purchased a property no. 2139, Ahta Mir Bukhari, Turakman Gate, Delhi. AW1 admitted that the falt no. 100, baron Road, in his name.
29. The respondent has not disputed the number of family members of 19 the petitioner, however, according to the respondent the petitioner recently sold a big flat which was allotted to him by the DDA and another flat no. 100, Baron Road, DDA Flats, New Delhi, is in the occupation of one of the sons of the petitioner. This flat is also in the name of the petitioner. The flat at Baron Road is of only one room and where the petitioner presently residing is having three rooms. It is not in dispute that the DDA flat at Turakman Gate already sold by the petitioner. Thus, the petitioner is in possession of total four rooms whereas his family consists of 52 members. Hence it is clear that the petitioner is not having sufficient accommodation for himself and his family members and his needs to get the possession of tenanted premises in question is bonafide.
Grounds u/s 14 (1) (h) of DRC Act.
30. Section 14 (1) (h) of DRC Act reads as under : "The tenant has, whether before or after the commencement of this Act, acquired vacant possession of, or been allottd, a residence".
31. AW1 deposed that respondent is not residing in the suit premises for the last 8 or 10 years. The respondent is presently residing at O/18, Turakman Gate, DDA Flats, Delhi alongwith his family. Respondent is not residing in the premises about 23 year before filing the present petition. 20 RW1 deposed that the house no. 3358, Phatak Tehlian, Turakman Gate, Delhi was an ancestral property in which respondent was born but the same was demolished after 19751976 during the emergency. In lieu of this property the respondent was allotted a small flat by the DDA bearing No. O/18, Turakman Gate, DDA Flats, Delhi. RW1 admits in his cross examination that the respondent is residing in flat no. O/18, Turakman Gate, DDA Flats, Delhi alongwith his family and he is residing for last about 11 years. AW4 deposed quarter no. O/18, Turakman Gate, DDA Flats, Delhi has been allotted to Mohd. Yunus s/o Mohd. Yusuf, the said allotment letter dated 08.02.1984 Ex. PW4/1. From the deposition of AW1, AW4 and RW1 it is proved that the respondent has acquired vacant possession of a flat no. O/18, Turakman Gate, DDA Flats, Delhi and at present he is residing in the said flat alongwith his family. Hence the grounds of eviction u/s 14 (1) (h) of DRC Act are established.
32. In view of the above discussions I am of the considered that the petitioner has proved this petition regarding the subletting, bonafide requirement and acquired vacant possession of residential accommodation under section 14 (1) (b), (e) and (h) of DRC Act respectively. However, as the petitioner did not obtain permission under section 19 of the Slum Area (Improvement and clearance) Act, 1956 and further failed to establish the 21 relationship of landlord and tenant between the parties, therefore, the present petition u/s 14 (1) (b), (d), (e) and (h) is not maintainable and the same is dismissed.
(Announced in the open court
on 03.02.2011) (Pritam Singh)
ARC/Central/Delhi