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Delhi District Court

Sh. Vidya Nand Varshney vs Sh. Subhash Chand Gupta on 21 March, 2023

   ________________________________________________________________
               IN THE COURT OF MS NIHARIKA KUMAR SHARMA
        ACJ-CUM-CCJ-CUM-ARC, NORTH DISTRICT, ROHINI, DELHI
  __________________________________________________________________
                                                                                       RC ARC No. 16/16
        In the matter of :-
        Sh. Vidya Nand Varshney
        S/o Late Sh. Bhagwati Pershad,
        R/o H. No. 147-A, Gali No. 15,
        Onkar Nagar-B, Tri Nagar,
        Delhi - 110035.
                                                                                                 .....Petitioner
                                                      Vs.
        Sh. Subhash Chand Gupta,
        S/o Sh. Naurangi Lal,
        R/o H. No. E-2/41B, Gali No. 2,
        Shastri Nagar, Delhi - 110052.
                                                                                             .....Respondent



Date of Institution                     : 04.06.2010
Date reserve for order                  : 27.10.2022
Date of Pronouncement                   : 21.03.2023


                                           JUDGMENT

Application for eviction of tenant under section 14(1)(e) read with section 25B of Delhi Rent Control Act, 1958

1. RELIEF SOUGHT: Recovery of possession of shop on the ground floor being a private shop no. 3 at the ground floor in Property No.147-A, Gali No. 15, Onkar Nagar B, Tri Nagar, Delhi-110035 (hereinafter referred to as the suit property).

2. FACTS OF THE CASE -The petitioner is the owner of suit property. Petitioner is the landlord in the suit property of premises consisting Private Shop No. 3 at Ground Floor in Property no. 147-A, Gali No. 15, Onkar Nagar

-B, Tri Nagar, Delhi - 110035 as shown in the site plan. The suit property was let out by the petitioner to the respondent in on 17.05.1983 through oral tenancy. The suit property was let out for the commercial purpose. No rent agreement was executed between the parties. However, rent receipts were issued against payment of rent and counter foils have been kept. At present, the rent of the suit property is Rs. 600/ month .

Bona fide requirement-As per the petition, the petitioner requires the suit property for himself and his family members who are dependent on him. The eldest son Sh. Neeraj Varshney is residing with his wife on the first floor. Second son Sh. Nitin Kumar Varshney is also residing on first floor. Petitioner alongwith his wife is also residing on the first floor. The first floor is purely residential in nature and cannot be segregated into parts.

The eldest son, Sh. Neeraj is running electric extension cord business in a shop at the corner measuring 9x10 at the ground floor. This space is not sufficient for the business. Further, second son, Sh. Nitin Kumar Varshney is having a diploma and has also completed a three year course and is certified to practice Naturopathy, yoga and Reiki. He requires his own space / clinic to practice and teach naturopathy, yoga and Reiki but due to non-availability of the space, he is not able to do so. The suit property is suitable for this requirement as it has an opening on 36 ft wide road and this area is intended to be increased by including portion of hall at the backside of the suit property. Sh. Nitin Kumar Varshney, is dependent on the petitioner to open his shop at the suit property.

3. OBJECTIONS TAKEN BY THE RESPONDENT TENANT The sons of the petitioner are married and leading a separate and independent establishment. None of the family members are dependent on the RC ARC No. 16/16 Vidya Nand Varshney Vs. Subhash Chand Gupta Date of judgment - 21.03.2023 Page No. 2/14 petitioner. There is no bona fide requirement of the petitioner or his sons as out of three shops at the ground floor owned by the petitioner, one is lying vacant. It is stated incorrectly in the petition that the same is occupied by the elder son of the petitioner. One big hall was also available to the petitioner however he has rented it out to Sh. Shiv Kumar for past 5-6 years.

4. ESSENTIALS -The present application has been made under clause (e) of sub- section (1) of section 14 of Act 59 of 1958, which after passing of judgment in Satyawati Sharma's v. Union of India is to be read as follows:

14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-

(e) that the premises are required bona fide by the landlord 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 accommodation;

In the light of the provisions of clause (e) of sub-section (1) of section 14 of Act 59 of 1958 , triable issues stated in the order allowing application for leave to defend and the pleadings of the parties following points fall for the determination of this court, namely • Whether the petitioner is the owner of the suit premises? • Whether there exists a relationship of landlord and tenant between the parties?

• Whether the premises are required bona fide by the petitioner? • Whether the petitioner has no other reasonably suitable accommodation?

5. EVIDENCE LED BY THE PETITIONER-

Petitioner has tendered his evidence by way of affidavit which is Ex. PW1/A. He relied upon the following documents-

   S. No.                  Description of document                                 Exhibit Number
    1.         Site plan of the suit property                               Ex. PW1/1
    2.         Election ID card of son Sh. Neeraj Varshney Ex. PW1/2
    3.         Copy of certificate of Sh. Neeraj Varshney                   Ex. PW1/3
    4.         Other certificate of Sh. Neeraj Varshney                     Ex. PW1/4

5. Certificates issued by Gandhi National Ex. PW1/5 to Ex. PW1/7 Academy of Naturopathy in favour of Sh. Neeraj Varshney

6. Ration Card of the petitioner Ex. PW1/8

7. Election I-card of Sh. Nitin Kumar Varshney Ex. PW1/9

8. Certificates issued in the name of Sh. Nitin Ex. PW1/10 to Ex. PW1/11 Kumar Varshney

9. Certificate issued to Sh. Nitin Kumar Ex. PW1/12 to Ex. PW1/13 Varshney relating to naturopathy and yoga.

10. Certificate showing first, degree, second Ex. PW1/14 to Ex. PW1/15 degree of reiki.

11. The certificate showing advance reiki Ex. PW1/16 to Ex. PW1/17 training and mastership

12. Certificate issued to Sh. Nitin Kumar Ex. PW1/18 to Ex. PW1/20 Varshney showing his excellence and attending of workshop

6. EVIDENCE LED BY THE RESPONDENT-

Sh. Gaurav Gupta, S/o Subhash Chand Gupta has tendered his evidence by way of affidavit which is Ex. RW1/A. He relied upon the following documents-

    S. No.                   Desciption of document                                Exhibit Number

          1.       Photocopy of certified copy of application                             Mark A
                   u/s 27 of DRC Act dated 24.10.2007
          2.       Photocopy of certified copy of order dated                             Mark B

RC ARC No. 16/16    Vidya Nand Varshney Vs. Subhash Chand Gupta   Date of judgment - 21.03.2023   Page No. 4/14
                     18.07.2008 on the petition                     of   the
                    respondent u/s 27 of DRC Act.
        3.          Copies of three original rent receipts.                          Ex. RW1/1 (colly)

7. POINT WISE ANALYSIS AND FINDINGS- The present case is of admitted tenancy and therefore, no detailed findings are required in respect of the ownership of the petitioners or the landlord tenant relationship as the same stand already established and have not been disputed.

Whether the premises are required bona fide by the petitioner?

The settled law in this regard is the requirement must be genuine and reasonable and not just a mere desire of the landlord. Reliance is placed upon the case of G.C. Kapoor v. Nan Kumar Bhasin, (2002) 1 SCC 610. It is settled position of law that bonafide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde [1999] 2 SCR 912, the Court while considering the bonafide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for 'presuming that his need is not bonafide'. It was also held that while deciding this question, "Court would look into the broad aspects and if the Courts feels any doubt about bonafide requirement, it is for the landlord to clear such doubt."Further in the case of Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353, the concept how the bona fide need is not a mere desire to be analyzed was discussed. The court stated that , in a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under Clause (e) of the proviso to Sub- section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively.

In the present case firstly the petitioner seeks the suit property for his second son to open a place for yoga, naturopathy and reiki and secondly that current shop occupied by the elder son (shown at point B in site plan) is falling short of space and the space in suit property may be used to expand the existing area of his shop. However considering the material on record and the evidence led by the petitioner, the primary requirement is for the second son to open a clinic practicing Naturopathy, Yoga and Reiki. In support of his qualification to run a space for yoga, naturopathy and reiki, it is stated in by PW2 Sh. Nitin Kumar Varshney that he has successfully completed a first and second degree in traditional Usui Shiki Rhoyo System of Reiki. He has received knowledge and attunement of the usui master symbol and all techniques for advance reiki training. He has completed Reiki Mastership and attained knowledge of Master levels of Usui System of Reiki Natural Healing and has basic requirements to teach all levels of Usui Systems of Reiki Natural Healing as Independent Reiki Master and also completed Karnud Master Reiki Degree Course. He has also completed grand master degree course of Usui Sistem of Universal Life Energy on 23.08.2009. The certificate pertaining to the aforesaid courses are exhibited during the evidence of PW2. However despite having aforesaid achievements, he is not able to have his own place to teach and practice due to non availability of the prominent place like the suit property. Further, his elder brother can also assist him as he has also completed a course in naturopathy and yoga. The witness admitted that he and his elder brother are married and living separately and petitioner are living with him. Sh. Nitin Kumar Varshney was examined on this aspect. Witness stated that he has obtained a registration number from institute of Naturopathy and Yoga for practicing in this field. It is not disputed by the respondent that the requirement of son of the Petitioner is not bona fide. Even in the cross examination, no questions are put to PW2 to show that he does not want to open the naturopathy, yoga and reiki clinic. It is a settled position of law that if the RC ARC No. 16/16 Vidya Nand Varshney Vs. Subhash Chand Gupta Date of judgment - 21.03.2023 Page No. 6/14 landlord or the dependent wants to start the business, it is not required to file the details regarding the qualification or the experience to run the business. However, documents furnished by the PW2 supports the claim of the bona fide requirement and the fact that that PW2 is qualified to run a clinic but not able to do so due to non availability of the space. Hence, considering the above discussion, the petitioner is able to prove that the suit property is required bonafide for opening the clinic.

The bonafide requirement is objected on following grounds :

• Sons of petitioner are not dependent on the petitioner.

• The suit property is not required for the residential purpose, hence it is against the law and petition is not maintainable • Respondent has regularly deposited the rent • No expert opinion for opening of naturopathy, reiki and yoga clinic is filed. • Petitioner is a habitual litigant and has filed various litigations against the respondent regarding the suit property • Sons of petitioner are not dependent on the petitioner-It is a settled position of law that the concept of dependency is to be interpreted in the socio economic background. Reliance is placed upon the judgment of Joginder Pal Vs Nawal Kishore, (2002), the Hon'ble Supreme Court, while construing who is the member dependent on the landlord , where it was held that keeping in view the social or socio religious milieu and practices prevalent in a particular section of society or to a particular region to which the landlord belongs,it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation, the landlord may require the tenanted premises and such requirement would be requirement of the landlord. The tests laid down to be applied are :(1) Whether the requirement pleaded and proved may properly be regarded as landlord's own requirement (2) whether on the facts and circumstances of a given case, actual occupation and user by some RC ARC No. 16/16 Vidya Nand Varshney Vs. Subhash Chand Gupta Date of judgment - 21.03.2023 Page No. 7/14 other person would be deemed to be landlord's own requirement. The answer would in turn, depend on (I) the nature or degree of relationship and or dependence between the landlord pleading the requirement as his own and the person who would actually use the premises, (ii) the circumstances in which the claim arises and is put forward, and (iii) the intrinsic tenability of the claim.

In the present case it is not disputed that Sh. Nitin Kumar Varshney is the son of the petitioner. As discussed above, the petitioner is responsible to settle his younger son in business / economically. Hence the requirement in the present case the actual occupation and use of present property by the son of the respondent is deemed to be the requirement of the petitioner himself. Further, the claim for the suit property to start the naturopathy, yoga, reiki clinic is raised as the suit property has the advantage of better visibility to public being on the main road, hence more footfall of the customers. Further considering the documents placed on record by PW2, it is highly probable that the PW2 is dependent on petitioner to start his business at the suit property. Hence, it is proved that the PW2 is dependent on the petitioner. • The suit property is not required for the residential purpose, hence it is against the law and petition is not maintainable- This ground is without merits as after the judgment of Satyawati Sharma v Union Of India, passed by Hon'ble Supreme Court of India,the commercial property rented out will also be considered within the ambit of Section 14(1)(e) of DRC Act. This judgment was further examined in the case of Vinod Kumar vs. Ashok Kr. Gandhi (CA 3793 of 2013), delivered on 05.08.2019 the divisional bench of the Apex Court answered the question whether the judgment delivered in the case of Satyawati Sharma case said to be per incuriam or not. The division bench observed that in the Satyawati Sharma case, it was held that Section 14(1) (e) of Act is violative of the doctrine of equality embodied in Article 14 of the Constitution in so far as it discriminates between the premises let for residential and non-residential purposes, when the same are required bonafide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the RC ARC No. 16/16 Vidya Nand Varshney Vs. Subhash Chand Gupta Date of judgment - 21.03.2023 Page No. 8/14 landlord's right to seek eviction of the tenant from the premises let for residential purposes only. It also clarified that it is not totally striking down of Section 14(1)(e) of the Act in its entirety but it has struck down only the discriminatory portion of Section 14(1)(e).

Hence, considering discussion, the present petition filed for the bona fide requirement of a commercial space is maintainable.

• Respondent has regularly deposited the rent - In the written statement the respondent has given the details of payment of rent. Questions were also put to the witness in this regard during cross examination which were objected. The objection was allowed in cross examination dated 29.08.2012 as the present petition is filed under section 14(1)(e) DRC. Payment and details of rent are not discussed and no finding is given on this point as the present case is not under section 14(1)(a) DRC and the issue of payment of rent is an independent cause of action. It will not affect the merits of this case. • No expert opinion for opening of naturopathy, reiki and yoga clinic is filed- It is settled law that the landlord need not show evidence that he has experience of said business that he proposes to start. In fact, it is not necessary for the landlord to indicate the precise nature of business or the manner in which the suit property will be used or the details of the business to start the same at the suit property. In Raj Kumar Khaitan & Ors. vs. Bibi Zubaida Khatun & Anr., MANU/SC/0411/1995: AIR 1995 SC 576, it was observed that "It was not necessary for the appellants-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody would bind the landlords to start the same business in the premises after it was vacated." Hence, the legal position is quite clear. The landlord need not to show evidence that he has experience / business model / expert opinion of said business that he proposes to start. In fact, it is not necessary for landlord to indicate the precise nature of business which he intends to start in the premises.

Similarly in the present case, the bonafide requirement of the petitioner does not gets defeated if no expert opinion is taken. In fact respondent has not stated / filed any document that any expert opinion is required to open the aforesaid business.

• Petitioner is a habitual litigant and has filed various litigations against the respondent regarding the suit property - Even if this ground is taken as it is, the same does not precludes the landlord to file a case against the tenant for violation of right / provision as privileged in law.

Whether the petitioner has no other reasonably suitable accommodation?

The law on this point is settled that while deciding the suitability of an alternate accommodation, it should be judged keeping in mind the requirements and suitability of the landlord and not that of the tenant. Tenant will not dictate the terms on the tenanted premises and how the landlord shall use his premises. Reliance is placed upon the case of , Adarsh Electricals and others vs Dinesh DayalMANU/DE/2782/2010, it was held that " the concept of alternate accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must e accepted by the landlord to satisfy his such need."Further the position of law on the interpretation is also settled. It is subjective and depends on the facts and circumstances of the each case. Reliance is placed upon the case of Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353 passed by in Hon'ble Supreme Court RC ARC No. 16/16 Vidya Nand Varshney Vs. Subhash Chand Gupta Date of judgment - 21.03.2023 Page No. 10/14 decision of it was held that the landlord is the best judge of his requirement and Courts have no concern to dictate to the landlord as to how and in what manner he should live.

As per the petition the suit property is most suitable to open the clinic for yoga, naturopathy and reiki as it has an opening towards a 36 wide road and being on the main road, it can attract a lot of customers. DW1 in his cross examination stated that the suit is open from one side that is main side is facing 36 ft road which is a busy road. DW1 also admitted that no documents is filed till date that the respondent and DW1 are doing the work of repairing of auto rickshaw and bicycles from the suit property. The petitioner also stated that a hall at point A in the site plan which lies behind the suit property will also be used for the clinic. Considering the location of the property, it appears to be suitable for opening the clinic. Now property stated by the respondent will be analyzed to see if they are suitable alternate to the bona fide requirements of the petitioner.

Each property stated by the respondent will be analyzed separately- • Corner shop at the suit property- This property is Shown as point B in the site plan of the suit property. As per the respondent this shop is lying vacant and suitable to the alleged bonafide requirement of the son of the petitioner as it also opens to 36FT wide road and being in the corner, it has two side opening. As per the petitioner, this property is in possession of the elder son of the petitioner who is using it for his electric extension cord business. PW2 Sh. Nitin Kumar Varshney stated that this shop is in the possession of his brother who manufactures extension cord at this shop without any name. After manufacturing, the same is supplied to the seller who brand it and sell it further. The said shop has no board and brother of the PW2 did not obtain any license to manufacture the extension cords however license in the name of Smt Geeta (wife of elder brother) was filed during the cross examination dated 08.11.2017 which is Ex. PW2/R1. Further there is no fixed time to open or RC ARC No. 16/16 Vidya Nand Varshney Vs. Subhash Chand Gupta Date of judgment - 21.03.2023 Page No. 11/14 close the shop. Further question was also put to the witness if the licence was renewed after the year 2006. On the contrary, DW1 alleged that the elder son is working in some factory but no document is filed to prove the same. It is very evident from the cross examination that neither the respondent is able to show that elder son is working in a factory or that the shop is lying vacant for past 10-12 years. Respondent has not been able to bring any proof of these allegations. Since, this property is in possession of the elder son, the same cannot be considered as an alternate accommodation. Further, even otherwise, if the petitioner is able to establish the bona fide requirement, 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. Insofar as the present eviction proceeding are concerned , vacant shops under possession of the landlords are duly disclosed, but the case of the landlord is that the premises / space under their possession is insufficient for the proposed furniture business.

• Shop at point C in the site plan - PW2 Sh. Nitin Kumar Varshney stated that this shop is already sold Sh. Ram Lal in the year 1998-99. No evidence is led by respondent to show that it is still owned by the petitioner. Hence this is not a suitable accommodation.

• Hall at the suit property marked at point A- As per the respondent this is a sufficient space to open the clinic for naturopathy, yoga and reiki. PW2 during his cross examination stated that this space is not sufficient and suit property is required alongwith the hall to open the clinic. This objection is without merits as it is a settled law that once the bona fide requirement is established, neither the landlord nor the court can direct how the landlord should use his property. The witness admitted that there is an entrance to the hall from 20 ft gali side. However it is already stated in the petition, the suit property is required to get the advantage of more customers as it has an opening towards a 36 ft road. This fact is also not denied by the respondent that an opening towards 36 wide RC ARC No. 16/16 Vidya Nand Varshney Vs. Subhash Chand Gupta Date of judgment - 21.03.2023 Page No. 12/14 road will give the advantage of more visibility of the clinic to the public hence more footfall of the customers. During cross examination the witness admitted that there is heavy traffic on the road facing suit property. Respondent during the cross examination suggested that the reception can be made near the stairs at the entrance hall at point A. As already discussed in the case law above, the court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. Reliance is placed upon the case of Krishan Lal vs R N Bakshi decided by Hon'ble High Court E. No. 69/13 Amit Tyagi & Anr. Vs M/s Shadi Ram Udhami Ram Page no. 10 of 20 on 19 May, 2010 . It is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position 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 and 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 tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement shown is totally mala fide or not genuine."Hence, hall at point A in the site plain is not sufficient space on its own for the bonafide and genuine requirement of the petitioner.

8. FINAL ORDER The present application for eviction is allowed. The petitioner is found entitled to recover the possession from the respondent of the suit premises i.e. Private shop no. 3 at the ground floor in Property No.147-A, Gali No. 15, Onkar Nagar- B, Tri Nagar, Delhi-110035.

In view of the provisions of sub-section (7) of section 14 of Act 59 of 1958 this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from today.

In the facts and circumstances of the case there shall be no order as to costs. File be consigned to the record room after due compliance.

Announced in the open court on 21.03.2023 (NIHARIKA KUMAR SHARMA) ACJ-CUM-CCJ-CUM-ARC NORTH DISTRICT, ROHINI COURT, DELHI RC ARC No. 16/16 Vidya Nand Varshney Vs. Subhash Chand Gupta Date of judgment - 21.03.2023 Page No. 14/14