Delhi District Court
Mrs. Saroj Tandon vs ) Sh. Harish C. Kashyap on 10 August, 2010
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL
SCJCUMRC (NEW DELHI DISTRICT),
PATIALA HOUSE COURTS
NEW DELHI
Eviction Petition (Old) No. E45/08
Eviction Petition (New) No. 71/09
Unique Case I.D. No. 02403C0989002008
Mrs. Saroj Tandon
W/o Late Sh. Anil Tandon
R/o 1A/4, Hopital Road,
JangpuraA
New Delhi 110014 ....Petitioner
Versus
1) Sh. Harish C. Kashyap
Sh. G.S. Kashyap
2) Mrs. Vinod Kashyap
W/o Sh. Harish C. Kashyap
both resident of :
8, Jor Bagh,
New Delhi 110003
address of the premises in suit:
49A, Khan Market,
New Delhi 110003 ....Respondents
(Anand Swaroop Aggarwal)
SCJCumRC/New Delhi
Eviction Petition (Old) No. E45/08
Eviction Petition (New) No. 71/09
Page 1/52
Date of filing of the eviction petition : 03.07.2008
Date on which arguments were concluded
and matter was fixed for orders : 19/07/2010
Date of the Judgment : 10/08/2010
Final Order : Eviction Petition
Allowed.
APPLICATION FOR EVICTION OF TENANT UNDER
SECTION 14 (1) (e) READ WITH SECTION 25B OF THE
DELHI RENT CONTROL ACT, 1958.
J U D G M E N T
This eviction petition u/s 14 (1) (e) r/w Section 25B of the D.R.C. Act has been filed by the petitioner with a prayer for an order of eviction /recovery of possession in favour of the petitioner and against the respondents in respect of suit property bearing Shop No. 49A, Khan Market, New Delhi morefully shown bounded by colour
(s) in the site plan Ex. P2/Schedule 'A'.
2. PETITIONER'S CASE In brief case of the petitioner against the respondents is that (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 2/52 petitioner/landlady is for all practical purposes, absolute owner of the shop/premises in suit i.e. shop bearing No. 49A, Khan Market, New Delhi 110003, which is nonresidential/commercial and has been let and is being used as such. As per petitioner open verandah in front of premises in suit has been encroached upon by the respondents without authority from the petitioner landlady, L and DO and/or the NDMC. It has been covered by raising a pucca masonry wall on both sides and a shutter has been installed on the front side of the building. As per the petitioner, prior to the petitioner rentals in respect of the premises in suit were being realized by her son (since deceased) namely Mr. Anil Tandon, the then ownerlandlord qua the tenanted premises, who had inherited this property from Smt. Santosh Tandon, interms of her Will and testament dated 05.10.70. As alleged, prior to his (Mr. Anil Tandon) untimely death Sh. Anil Tandon had executed his last Will and Testament on 18.11.80 bequeathing the premises in suit, amongst others, upon the petitioner exclusively. As such, as per the petitioner, after the death of Mr. Anil Tandon petitioner by succession became the owner landlady qua the premises in suit. As per the petitioner, respondents were informed of the aforesaid events and (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 3/52 respondents after examining the matter in detail, ultimately attorned to the petitioner in the year 1989 and since then there has been no dispute on the issue of ownership/landlordship of the petitioner qua the premises in suit.
As alleged, premises in suit were let out to the tenant on 25.01.67 with execution of Rent Deed. The said Rent Deed was executed between Smt. Santosh Tandon, mother in law (since deceased) of the petitioner on one hand and the respondents on the other. The names of the children of the respondents were also mentioned in the Rent Deed, as they were (presumably) minors and were not signatories to the Rent Deed, as such they are not the tenant of the petitioner qua the "premises in suit". As per petitioner, the premises were let out to the respondents jointly for running a shop but shop is not run or even managed by respondents themselves and at present the premises in suit are in actual occupation of M/s Hidesign with whom respondents have (clandestinely) entered into some agreement. As alleged, "premises in suit" were originally let out to the respondents at a monthly rental of Rs.185/ including property taxes as per the then prevailing law and respondents were lastly (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 4/52 paying rentals @ 333.30 per month w.e.f. September 2003. As alleged, respondents are repeatedly depositing Rs.303/ per month in the court of Ld. Rent Controller and balance amount of Rs.30.30 per month is being paid cheque drawn by respondents directly in favour of petitioner. As per the petitioner, in order to try and escape eviction/ejectment from the premises in suit respondents jointly as well as severally tried to hoodwink the contractual relationship as also the law (or in other words overreach the landlord/landlady) by tendering rentals by cheques drawn in favour of the landlord/landlady on the bank accounts of M/s. Vinnies, but these tenders were not accepted. As alleged, thereafter, the respondents with oblique motives started tendering rentals by cheque drawn on the bank account of M/s. H.C. Kashyap, HUF and these cheques were accepted under protest and naturally without prejudice to the rights of the landlord/landlady. As per petitioner, the tenants in the premises in suit always were respondents no. 1 & 2 personally and no firm, HUF or other entity was ever inducted as a tenant in the premises in suit or in any part thereof.
As per the petitioner, premises in suit are required bonafidely (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 5/52 by the petitioner/landlady for her own use and/or for the use of her family members for running their business of restaurant and petitioner is not in use and occupation or even physical possession of any other reasonably suitable accommodation for meeting the needs of her aforesaid requirements. As alleged, petitioner's family comprises of (a) Smt. Saroj Tandon (petitioner), (b) Sh. Anshu Tandon (son), (c) Smt. Anita Anna Tandon (daughterinlaw), (d) Kumari Geetika Tandon (daughterinlaw) (aged 19 yrs) and (e) Master Aditya Karan Tandon (grand son) (aged 16 yrs). As per petitioner, petitioner and her son, namely Mr. Anshu Tandon (in partnership, the petitioner being the senior partner) were carrying on business under the name and style of M/s. Kit Kat Restaurant at the Kiosks Nos. I & II, near BSES Office/Petrol Pump at Nizamuddin West, New Delhi 1100013. The aforesaid accommodation was/is rented by the petitioner Smt. Saroj Tandon from Remunerative Project Cell, Municipal Corporation of Delhi, the last rentals (inclusive of maintenance charges paid) being Rs. 13,830/ per month. As alleged aforesaid business of fast food and restaurant was being run by the petitioner and her son with all necessary and (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 6/52 prescribed permissions and licenses obtained from all concerned departments including the Municipal Corporation of Delhi as well as Delhi Police. Further, it is alleged in the petition that petitioner's son Sh. Anshu Tandon with extraordinary labour and effort put in the aforesaid restaurant business had generated a large quantum of goodwill for the aforesaid business of Kit Kat Restaurant, in as much as the same was doing well in the localities of Kaka and Bapa Nagar, Khan Market, Sunder Nagar, Nizamuddin East and West, Jangpura, Bhogal etc. not only at lunch hours but also during the evenings. Further, as alleged, by irony of fate the aforesaid business suddenly and surprisingly came to a standstill on 07.05.08 because of some blunder's, inadvertence, omission and/or errors/misunderstanding committed by the officials of the Municipal Corporation of Delhi who (without any prior notice or intimation) sealed the restaurant premises and/or the Kiosks purportedly on the score that the same was being run without a municipal license and/or that the premises were being misused. As alleged, petitioner is not in a position to produce any documents evidencing the aforesaid sealing as no intimation of sealing was served on the petitioner/any of her employees.
(Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 7/52 Petitioner has further alleged that petitioner repeatedly represented to the Municipal Corporation of Delhi as well as the Monitoring Committee appointed by Hon'ble Apex Court of the country, but all the representatives have failed to bear results and even today the aforesaid kiosks (where the restaurant was begin run) are lying sealed and nobody is allowed even to enter the same. It is further alleged that, as such, petitioner and her son Sh. Anshu Tandon along with their six employees are now sitting at home doing nothing. The business and income generated from the same has come to an absolute standstill. Further, as alleged, in order to try and reverse the set back that has been suffered by the aforesaid (family) business coming to a sudden stand still and rendering so many hard working and honest employees jobless, the petitioner had decided that she and her family should now restart the business from the premises in suit, namely, Shop No. 49A, Khan Market, New Delhi New Delhi which are (by any standards) ideally suited for the aforesaid business. Also, as per the petitioner, even otherwise the rental income generated from letting out the aforesaid premises to the respondents (i.e. Rs. 333.30 per month) constrains the petitioner to (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 8/52 admit the fact that paying rentals @ Rs. 13,830/ per month for the two Kiosks at Nizamuddin, is not advisable as the premises in suit would be and are much more ideally situated for the aforesaid business and are bound to result in sales multiplying manifold if business is carried on from the commercial complex of Khan Market instead of the two kiosks at the corner of Nizamuddin West, New Delhi 110013. As alleged, petitioner's requirement for the premises in suit is just, genuine, honest and bona fide besides being immediate.
It is also alleged in the petition that the petitioner or her family is not in actual possession of any other reasonable suitable accommodation for carrying on her aforesaid family business of Restaurateurs. As per petitioner, petitioner also owns in the locality of the Khan Market following premises:
a) Flat no. 35, First and Second Floor only, Khan Market, New Delhi 110003 which the petitioner has let out to M/s. Big Chill Cafe Pvt. Ltd. on 26.08.05, on which date, as alleged, petitioner had no personal/bonafide requirements of the premises in suit or any part thereof ;
and (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 9/52
b) Shop no. 35 A & B, Ground Floor, Khan Market, New Delhi 110003, which the petitioner has let out to M/s. Aryan Lifestyle Pvt. Ltd. on 10.01.2007 on which date as well, as alleged, petitioner had no personal/bonafide requirements of the premises in suit or any part thereof. It is with these averments that an order of eviction/recovery of possession has been prayed for by the petitioner in her favour and against the respondents in respect of premises in suit bearing Shop No. 49A, Khan Market, New Delhi New Delhi, as shown in site plan marked as Schedule A/Ex. P2.
3) Vide order dated 04.07.2008, Ld. Predecessor of this court had issued summons as prescribed in the IIIrd Schedule to the D.R.C. Act to the respondents. After having been served with the same respondents on 21.07.2008 moved an application seeking leave to defend the present eviction petition. To this application, reply/counter affidavit dated 19.08.08 was filed by the petitioner on 26.08.08. To the reply/counter affidavit dated 19.08.08 respondents filed a rejoinder dated 10.09.08. Vide order dated 03.07.09, respondents were allowed to defend the present eviction petition. As against this (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 10/52 order petitioner had approached he Hon'ble High Court of Delhi vide CM (M) No. 840/09 wherein Hon'ble Mr. Justice S. Murlidhar on 06.05.2010 passed the following order: " Order 06.05.2010
1. Learned counsel for the Respondents states that the evidence in the trial is almost complete. The Defendants' witnesses are being crossexamined. The next date before the trial court is 26th May 2010.
2. In that view of the matter, this Court is not inclined to interfere. The trial court is requested to complete the recording of the evidence and deliver a final judgment within a period of three months from today.
3. The petition is disposed of.
4. Order dasti to the learned counsel for the parties.
Sd/
MAY 06, 2010 S. Muralidhar, J"
4. RESPONDENTS CASE
On 03.08.09 respondents filed Written Statement of Defence. In their Written Statement respondents have taken certain preliminary objections, such as that eviction petition is bad for nonjoinder of (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 11/52 necessary parties in as much as all the parties to the Rent Deed dated 25.01.67, as tenants have not been made respondents in the present petition. As per the respondents, even the notice dated 12.10.01 was issued by Ms. Vibha Datta Makhija, Advocate, on behalf of the petitioner addressed to the respondents as well as Ms. Kokila Kashyap, Ms. Vandana Kashyap and Sh. Sanjiv Kashyap. Further, as per the respondents, premises in suit were let out to parties of the second part to Rent Deed dated 25.01.67 by the motherinlaw of the petitioner. As alleged, intention of the landlady was clear that the relationship of landlady and tenant existed between her and the addressee's of the notice dated 12.10.01 and eviction petition against the respondents (two in number only) is not maintainable. Further, as per the respondents, petitioners alleged requirement is absolutely malafide and it is neither just nor genuine nor bonafide nor immediate nor honest and present eviction petition has been filed malafide with malafide and dishonest intentions and purposes with ulterior/motives in as much as the petitioner chose to forego her own alleged requirement and to let out two premises available to her at an exorbitant and high rentals i.e. Flat No. 35, First Floor (measuring (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 12/52 2000 Sq. ft. ) for running a restaurant by the name of Big Chill at a monthly rent of Rs. 2,10,000/ besides taking an interest free security deposit of Rs 12,60,000/ and premises no. 35 A & B, Khan Market (measuring 998 Sq. ft.) to Aryan Life Style Pvt. Ltd. at a monthly rent of Rs. 8,25,000/ with interest free security of about one crore with an understanding that rent of Rs. 8,25,000/ is liable to an increase of 15 % after 3 yrs and then by 17.5 % after the next 3 yrs. As alleged petitioner's conduct clearly and unmistakably shows and indicates that the premises in suit are not required bonafide by petitioner for herself/her son for business purposes. As per respondents, the alleged nonavailability of the alternative accommodation as pleaded by the petitioner is of her on making and creation and petitioner cannot be allowed to plead and say that petitioner is not in use and occupation of the kiosks. As alleged, petitioner has filed copy of affidavit of Mr. Anshu Tandon, her son, dated 14.05.08 which states that he (Anshu Tandon) will abide by all the guidelines and norms issued regarding kiosks and that he will remove the socalled encroachments and that he will run the business only from the alloted kiosks and will not make any encroachment in (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 13/52 future on public land. As per respondent, from this it appears that petitioner and her son encroached upon portion not alloted to the petitioner. As alleged, petitioner and her son are in possession of the kiosks where they are running their restaurant business and merely because the place of business /kiosks of the petitioner were sealed temporarily and that too on account of petitioner's fault petitioner cannot make such sealing a ground for bonafide requiring the premises in suit. As per respondent, petitioner has not in any manner been deprived of her place of business and it can by no stretch of imagination be said and/or accepted that the petitioner doe not have any other reasonably suitable accommodation for carrying on her business.
The respondents in their written statement has disputed the ownership of the petitioner qua the property in suit, but they have not denied the status of the petitioner as landlady. As per respondents, landlords/land Ladies like the present petitioner who have vast and a number of commercial properties at their disposal or in any case were at their disposal but chose not to take advantage of the same and instead reap high rentals as profit from the same cannot take (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 14/52 advantage of changed law/scenario and a law cannot help such Landlord/Landladies like the petitioner who want to take advantage of her/their own wrongs. As alleged, respondents have their only source of income from the premises in suit and in case they are forced to vacate premises in suit they shall virtually be on the road with absolutely no source of income.
On merits, respondents have admitted that premises were let out on 25.01.67 vide Rent Deed dated 25.01.67. As per the respondents besides the respondents their daughters Ms. Kokila Kashyap, Vandana Kashyap and son Sanjeev Kashyap, are tenants in respect of premises in suit. As alleged all the above said persons including H.C Kashyap, HUF are tenants in respect of Shopy no. 49 A, Khan Market, New Delhi and it is for the above reasons that the rent receipts were issued in favour of Mr. H.C. Kashyap, HUF. The respondents have denied the stand of the petitioner that the cheques drawn by H.C. Kashyap, HUF were accepted under protest or without prejudice. As per respondents rent receipts were issued in favour of Vinnies and H. C. Kashyap HUF. As alleged Vinnies was pet name of respondent no. 2 and business was carried on under the trade name of (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 15/52 Vinnies which was owned by H.C. Kashyap, HUF. As per the respondents by virtue of issuing of rent receipts in favour of H.C. Kashyap, HUF, the predecessor in interest of petitioner accepted the HUF as tenant.
The respondents have denied the stand of the petitioner that shop is not run or managed by the respondents/tenants and that respondents have clandestinely entered into agreement with Hidesign. The respondents have denied the correctness of the site plan. As per respondents so called Varandah has always been in the use and occupation of the respondents since the very beginning. As alleged the said Varandah in any case is not a part of the property of the petitioner. The respondents have denied the averment of the petitioner that respondents have raised pucca masonry wall on both sides and a shutter has been installed on the front side of the building. As per respondents partitions were raised by the adjoining shop owners of shop no. 49B and 50 to segregate their shops and a shutter, of course, was installed to protect the premises in suit.
The respondents in their Written Statement have denied the averments made by petitioner in the eviction petition to make out a (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 16/52 case of eviction of the respondents on the ground of bonafide requirements u/s 14 (1)(e) of the DRC Act. As per respondents copy of the alleged "Will" dated 18/11/1980 has not been furnished to respondents but the petitioner asked for rent after death of her husband Sh. Anil Tandon which was given to her.
With these averments respondents have prayed for dismissal of the present eviction petition with cost.
5) Petitioner has filed replication to the WS of the respondents. As per the petitioner Ms. Kokila Kashyap, Ms. Vandana Kashyap and Sh. Sanjeev Kashyap in 1967 were minors and the respondents even today has not disclosed the dates on which Ms. Kokila Kashyap, Vandana Kashyap and Sanjeev Kashyap were born. As per petitioner, there cannot be a lease of immovable property in favour of a minor (as that "contract" involves reciprocal promises) and therefore alleged lease allegedly in favour of Ms. Kokila Kashyap, Ms. Vandana Kashyap and Sh. Sanjeev kashyap are not only illegal but void. As per the petitioner never ever since 1967 till today Ms. Kokila Kashyap and/or Sanjeev Kashyap have been accepted as joint tanants in the premises in suit (even after they attained majority). As alleged, (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 17/52 even otherwise these persons have never come forward to assert their (alleged) rights in the premises in suit or any part thereof. Further, as per the petitioner, in any case and in view of the matter that the purported estate of Ms. Kokila Kashyap, Ms. Vandana Kashyap and/or Sanjeev Kashyap, the alleged (joint) tenants in the premises in suit is duly, adequately and sufficiently represented before this court by their parents/joint tenant and therefore it is not necessary to implead said children of the respondents as party to the present eviction petition. Further, as per the petitioner prior to 07.05.08 (the date of sealing of the kiosks that were then licensed on a year to year basis by the MCD which license has since been surrendered by petitioner with a view to maintain austerity) the petitioner had no intention to shift her business of M/s. Kit Kat Restaurant to Khan Market and therefore she had let out other premises in the year 2005 and 2007. As per petitioner, the accommodation that is now let out to M/s. Big Chill Cafe Pvt. Ltd. was earlier residential flat on the first floor in Khan Market and it has been lying unsued/locked for quite some time as the petitioner already had ample residential accommodation available to her in Jang pura. As alleged this flat was (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 18/52 permitted to be converted into "commercial" accommodation by Land and Development Officer, G.O.I. New Delhi only in 2005 and to seek and obtain aforesaid 'conversion' of the residential flat on first and second floors etc. (from residential to commercial), the petitioner had to pay to the Land and Development Officer a sum of Rs.12,50,000/ approximately and therefore it was necessary for the petitioner to seek reimbursement of the aforesaid sum by letting out the aforesaid accommodation as the payment had been made by the petitioner had created a severe dent in her savings made by the petitioner over a long period of time as also after borrowing money from her daughters which had necessarily to be returned forthwith. Hence also the said accommodation was let out to generate some capital to repay the loans. As per petitioner neither in 2005 nor in 2007 the petitioner had any intention or even requirement to shift their business from Nizammudin West to Khan Market. It was fruitless, as alleged, to keep prime commercial space vacant so it was let out. As per petitioner, suddenly on 07.05.08 situation changed drastically and petitioner's need for the premises in suit arose and very soon became paramount as MCD refused to relent. As per the petitioner, the total (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 19/52 area of the accommodation in the aforesaid two kiosks at Nizammunid (West), New Delhi was 98 Sq. Ft. only and on 16.02.09 realizing that license fee was accruing month after month and would not be foregone by the MCD (even though kiosks had been sealed by the MCD itself) the petitioner was constrained to surrender kiosks against acknowledgment to the MCD. As such, now the issue of availability of alleged, alternate suitable accommodation for running family business of restaurant of Nizamun (West), New Delhi has become redundant.
As alleged, the surrender of Kiosks was accentuated in order to reduce the immence financial burden the petitioner has suffered due to the sealing of the kiosks. As per petitioner, the carpet area of the premises in suit is 376 sq. felt and thus the accommodation comprised in the premises in suit is much more than sufficient for the petitioner to carry on her aforesaid business under the name and style of M/s. Kit Kat Restaurant. As per petitioner, after the surrender of the Kiosks to the MCD, there is no scope for any doubt remaining as to whether the petitioner is currently is in possession of, or for that matter has available to her, any other (allegedly) suitable accommodation to be (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 20/52 able to start her business therefrom.
Also in the replication petitioner has denied the averments made in the WS and reaffirmed the averments made in the eviction petition.
6. PETITIONER'S EVIDENCE To substantiate her case on judicial file, petitioner has examined one witness namely Mr. Anshu Tandon who has filed affidavit Ex. PW1/A as his examination in chief. On 29/01/2010, petitioners evidence was closed by PW1 Mr. Anshu Tandon by making a separate statement to that effect.
7. RESPONDENTS EVIDENCE On the other hand, respondent no.1 Mr. Harish C. Kashyap has himself entered into the witness box as RW1 Mr. Harish C. Kashyap. On 26/05/2010 Respondent Evidence was closed by Sh. V. K. Srivastava Adv. for the respondents by making a separate statement to that effect.
8. Vide orders dated 14/07/2010 and 17/07/2010 two separate applications moved on behalf of petitioner seeking leave to tender in evidence additional documents were disposed of.
(Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 21/52
9. I have heard Sh. Deepak Gupta Adv. for the petitioner and Sh. V. K. Srivastava Adv. for the respondents. Both the ld. counsel have argued in terms of respective pleadings/versions of the parties as made out on the basis of material available on judicial file.
ARGUMENTS OF LD. COUNSEL FOR PETITIONER Ld. counsel for the petitioner has argued that sealing of two kiosks which were under the use and occupation of the petitioner as licensee from MCD is a matter of fact but respondents have not proved on record, encroachments allegedly made by petitioner. As submitted even if it is assumed that there was encroachment, the fact remains that kiosks stood sealed by MCD and now the same stands surrendered by petitioner. Further ld. counsel for petitioner submitted that even if it is taken that kiosks are with the petitioner, even then petitioner shall be entitled to the possession of the premises in suit on the ground of bonafide need in as much as rent being paid by petitioner with regard to the kiosks in question is much more than the rent being received by petitioner with regard to premises in suit.
Further, as per ld. counsel for petitioner, as per letter dated 20/05/2010, despite representations made by petitioner, Monitoring (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 22/52 committee has not accepted the desealing of the kiosks in question.
As per ld. counsel for petitioner rent is being paid by respondents to petitioner since last 23 years & nobody else has come forward and demanded rent from the respondents. As submitted respondents were inducted as tenants in the premises in suit by the motherinlaw of the petitioner. As per ld. counsel for petitioner, respondent no.1 in his crossexamination has conceded that petitioner is the owner of the premises in suit. As per ld. counsel for petitioner, petitioner has no other suitable accommodation, in as much as, kiosks have already been surrendered by petitioner. Further, as submitted, Delhi Police Licence in respect of restaurant business carried out by petitioner at the kiosks in question also stands cancelled as per letter dated 7/07/2010 which is per se admissible u/s 133 of the Delhi Police Act. As per ld. counsel for petitioner, present eviction petition cannot be said to be bad for nonjoinder of necessary parties. As per ld. counsel for petitioner no lease can be executed in favour of a minor and lease can be executed in favour of adult persons only. As per ld. counsel for petitioner, persons other than the respondents herein must have been major by now but none of them have attorned (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 23/52 to the Petitioner or have/has pressed their alleged right in the premises in suit. As per ld. counsel for petitioner notice for termination of tenancy to one of the joint tenants and an eviction against one of such tenants is maintainable & binding on all the other joint tenants. Also as per ld. counsel for petitioner it is not the case of the respondents that persons other than respondents are in possession of the property in suit.
As per ld. counsel for petitioner estate of all the tenants in premises in suit stands represented & it is not the case here that there is collusion between the petition and respondents herein ld. counsel for petitioner has relied upon following case laws: I. Premila Balidas and Ors. Vs. Jogesher Mandal, AIR 1918 Patna 626. II. (Nappalli Kandiyilthamasikkum Puthiyotil Kanhiratan) Govinda Kurup Vs. (Chowakkaran Koloth) Beekku & Ors., AIR 1931 Madras 147. III. Kanji Manji Vs. The Trustees of the Port of Bombay, AIR 1963 Supreme Court
468. IV. Jaykant Harkishandas Shah Vs. Durgashanker Valji Pandya, AIR 1970 Gujrat 106. V. N.K. Mohd. Sulaiman Sahib Vs. N.C. Mohd. Ismail Saheb & Ors., AIR 1966 Supreme Court 792. VI. Ashoka Chintaman Juker & Ors. Vs. Kishore Pandurang Mantri & Ors.,(2001) 5 Supreme Court Cases 1. VII. Inder Pal Khanna (Sh.) Vs. Bhupinder Singh Rekhi (Rtd.), 2008 VII AD (DELHI) 328, VIII. Harish Tandon Vs. Addl. District Magistrate, Allahabad, U.P. & Ors., (1995) 1 Supreme Court Cases 537, IX. Kanta Bali Vs. Kalawati Devi, 58 (1995) Delhi Law Times 4, X. Chander Kanta Singhal Etc. Vs. M/s Kapadia Exports & Anr., 65(1997) (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 24/52 Delhi Law Times 926 (DB). XI. Nand Lal Vs. Mundras Devi, 147 (2008) Delhi Law Times 749, XII. R. Ramanujan Vs. Ajit Singh Etc., 1978 Rajdhani Law Reporter 378, XIII. Jugal Kishore Vs. Rajindra Prasad & Ors.,1981(1) All India Rent Control Journal 258, XIV. Hakim Purshotam Lal (through his LRs) Vs. Goverdhan Lal & Ors., 38 (1989) Delhi Law Times 287, XV. Prativa Devi (Smt.) Vs. T.V. Krishnan, (1996) 5 Supreme Court Cases 353, XVI. Shiv Sarup Gupta Vs. Mahesh Chand Gupta, (1999) 6 supreme Court Cases 222, XVII. M.A. Rehman & Ors. Vs. M/s Golden Paper Udyog Pvt. Ltd., 1987 (1) RCR 609, XVIII. M/s Indian Paper Machinery & Engineering Works Ltd. Vs. Sarwarth Lal Jaini, 1988 (2) RCR 86, XIX. Trilok Chand & Ors. Vs. Raj Kumar, 1987 (2) RCR 570, XX. Peter James Vs. Dewan Chand, 1979 Rajdhani Law Reporter, 191, XXI. R.B. Kapoor Vs. Manik N. Dastoor, 43 (1991) Delhi Law Times 127, XXII. Tahira Begum Vs. Sumitar Kaur & Anr., 166 (2010) Delhi Law Times 443, XXIII. Meenal Eknath Kshirsagar (Mrs.) Vs. Traders & Agencies & Anr., (1996) 5 Supreme Court Cases 344, XXIV. Savitri Sahay Vs. Sachidanand Prasad, (2002) 8 Supreme Court Cases 765, XXV. M.C. Mehta Vs. Union of India & Ors., I.A. No. 22 in Writ Petition (Civil) Nos. 4677 of 1985, Supreme Court of India, dtd. 24.03.2006, XXVI. M.C. Mehta Vs. Union of India & Ors., I.A. No. 22 in Writ Petition (Civil) Nos. 4677 of 1985, Supreme Court of India, dtd. 03.04.2006, XXVII. Krishna Chopra Vs. Smt. Raksha, 1999(2) RCR 690.
ARGUMENTS OF LD. COUNSEL FOR RESPONDENTS On the other hand, ld. counsel for the respondents has submitted that section 14(1)(e) of the DRC Act uses the word "bonafides" in "italics" to add emphasis on the point that a petition u/s 14(1)(e) of DRC Act, to succeed in eviction of a tenant from (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 25/52 tenanted premises, must have been filed by landlord/owner bonafidely rather than with ulterior/oblique motives as a state of mind. As per ld. counsel for respondent notice given by Ms. Vibha Dutta Makhija Adv. on behalf of the petitioner accepts all the five persons as tenants & para.10 of the said notice indicates that intention of the petitioner is to receive rent from the respondents at market rate or to get the premises in suit vacated from the respondents. As per ld. counsel for respondent present eviction petitioner has been filed malafidely in as much as kiosks stand sealed on account of defaults on the part of petitioner herself. As per ld. counsel for respondents, present eviction petition being for partial eviction is not maintainable in as much as "Verandah" is not part of premises in suit. In the course of arguments ld. counsel for the respondents fairly submitted that ownership of the petitioner qua the premises in suit is not of much dispute. As per ld. counsel for the respondents PW1 Mr. Anshu Tandon has not disclosed his income to substantiate the stand of the petitioner that petitioner had generated a large quantum of goodwill for the business of Kit Kat Restaurant.
As per ld. counsel for the respondents, RW1 Mr. Harish C. (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 26/52 Kashyap has deposed truly. Further, as per ld. counsel for respondents, no reason has been disclosed in the letter dated 20/05/2010 or 11/05/2010 as to why desealing was not accepted by Monitoring Committee. Further, as per ld. counsel for the respondents, notice Ex. PW1/D2 does not mention the need of the petitioner qua the tenanted premises. As per ld. counsel for the respondents, petitioner was paying higher rent to MCD even when she had disposed of other two properties by letting them out at high rentals. As per ld. counsel for respondents, in the present case requirement of the petitioner arose after the Judgment of Hon'ble Supreme Court of India in the case of Satyawati Sharma (dead) By LRs Vs. UOI & Ors. AIR 2008 SC 3128.
As per ld. counsel for respondents, challenge to the present eviction petition is mainly on the ground of "malafides" on the part of petitioner.
REPLY/REJOINDER ARGUMENTS OF LD. COUNSEL FOR PETITIONER In the reply/rejoinder arguments ld. counsel for petitioner has submitted that present eviction petition has been filed only after the (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 27/52 sealing of the kiosks on 7/05/2008 and not before thereto and hence it cannot be said that eviction petition has been filed malafidely. Further ld. counsel submitted that sealing and surrender of the kiosks is within the knowledge of the respondents but no evidence to prove the facts otherwise has been lead by respondents although the factum of sealing of the kiosks has been denied by respondents in their Written Statement of defence. Further, as per ld. counsel for the petitioner, relationship of landlord and tenant does not come into existence merely because some person is mentioned as tenant in the notice. As per ld. counsel for petitioner RW1 Mr. Harish C. Kashyap in his crossexamination has deposed that other persons other than the respondents herein have not attorned to petitioner as tenants. Further, as per ld. counsel for petitioner, notice was served on respondents in the year 2001 and requirement had arosen in the year 2008 only after the sealing of kiosks by MCD. As submitted, encroachment, if any, cannot be removed by the petitioner in as much as main entrance gate for kiosks is sealed. Further, as per ld. counsel for the petitioner, petitioner has not been called upon to produce the income tax returns etc. even in the course of crossexamination of PW1 Mr. Anshu (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 28/52 Tandon & thus respondents cannot argue now that petitioner has failed to prove his income from the restaurant business. Lastly ld. counsel for petitioner, on Court query, submitted that in the facts and circumstances of this case, nonexamination of petitioner Smt. Saroj Tandon as petitioners witness is inconsequential in as much as PW1 Mr. Anshu Tandon is having first hand personal knowledge of all the facts and circumstances of this case.
10. I have gone through the entire material available on judicial file very carefully. Also I have gone through the case laws relied upon by ld. counsel for the petitioner with utmost regards. Further I have given a considered thought to the rival submissions made by ld. counsel for the parties keeping in view the facts and circumstances of this case as they arise on the basis of material available on judicial file.
11. After the judgment of Hon'ble SC of India in Satyawati Sharma (dead) By LRs. Vs. UOI & Anr., AIR 2008 SC 3148 section 14 (1) (e) of the DRC Act reads as under : "42. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 29/52 neither the pleaded case of the parties nor the learned counsel argued that Section 14(1)(e) is unconstitutional in its entiretly and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e) so that the remaining part thereof may read as under:
"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."
While adopting this course, we have kept in view wellrecognised rule that if the offending portion of a statute can be severed without doing violence to the remaining part thereof, then such a course is permissible - R.M.D. Chamarbaugwalla Vs. Union of India, AIR 1957 SC 628 and Lt. Col.
Sawai Bhawani Singh Vs. State of Rajasthan, (1996) 3 SCC 105.
43. As a sequel to the above, the Explanation appearing below Section 14(1)(e) of the 1958 Act will have to be treated as redundant."
12. OWNERSHIP OF PETITIONER QUA PREMISES IN SUIT Undisputedly petitioner is the landlady of the respondents qua (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 30/52 the premises in suit. However, ownership of the petitioner qua the premises in suit has been denied by the respondents. It is a settled law that requirement of S.14(1)(e) DRC Act as to "ownership" does not mean absolute ownership. It simply requires that status of the petitioner/landlady is more than that of a tenant.
Now admittedly respondents came into possession of the premises in suit vide Rent Deed Ex. PW1/D1 executed between Smt. Santosh Tandon (mother in law of the petitioner herein) and respondents. As per PW1 Mr. Anshu Tandon, his father Mr. Anil Tandon (since deceased) inherited premises in suit from Smt. Santosh Tandon in terms of her will and Testament dated 5/10/1970 and prior to his untimely death father of PW1 Mr. Anshu Tandon, Mr. Anil Tandon had executed his last Will and Testament on 18/11/1980 bequeathing the premises in suit exclusively upon the petitioner. With regard to above depositions only thing which PW1 Mr. Anshu Tandon has been made to depose in his crossexamination is that "We did not take any probate in respect of the will of my late father Sh. Anil Tandon". Thus the above depositions in a way have gone unchallenged. Also it is pertinent to note that as per record of L&DO, (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 31/52 the premises in suit stands in the books of office of L&DO in the name of Smt. Saroj Tandon w/o Sh. Anil Tandon, the petitioner herein. The same is also true as regards the records of NDMC.
Also RW1 Mr. Harish C. Kashyap in his crossexamination has deposed as under : "............................................................................... ... After the death of Mrs. Santosh Tandon, we were paying rental in respect of the premises in suit to Sh. Anil Tandon Subsequent to his death the present petitioner approached and started demanding that rentals to be paid to her as she was the real heir and successor to Mr. Anil Tandon. Believing her representation we started paying her the rental in respect of the present suit. ............................................................" Further RW1 Mr. Harish C. Kashyap in his crossexamination has deposed as under : "............................................................................... .. According to me the petitioner is the owner of the suit property. Again said inspite of demand she did not furnish us a copy of the Will executed by her husband Sh. Anil Tandon (Deceased). It is correct that for the last 23 years we have been paying rentals in respect of the premises in suit to (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 32/52 the petitioner. Vol. We have been paying rentals to her as she is the landlady but we do not recognize her to be the owner. During the last 23 years nobody other then the petitioner has asserted his/ her rights as owner of the premises in suit............"
Also respondents have not disclosed as to who is owner of premises in suit, if petitioner is not the owner. In view of above discussion, petitioner can be said to be "owner" of the premises in suit for the purposes of section 14(1)(e) DRC Act 1958.
13. ISSUE OF NONJOINDER OF NECESSARY PARTIES In the present case Rent Deed Ex. PW1/D1 has been executed between Smt. Santosh Tandon on one part and Sh. Harish C. Kashyap S/o Sh. G.S. Kashyap, Smt. Vinod Kashyap w/o Sh. Harish C. Kashyap, Miss. Kokila Kashyap, Miss Vandana Kashyap daughters of Sh. Harish C. Kashyap and Master Sanjeev Kashyap S/o Sh. Harish C. Kashyap through their guardian Sh. Harish C. Kashyap, on the other part. The said Rent Deed bears the signature of Smt. Santosh Tandon, Sh. Harish C. Kashyap and Smt. Vinod Kashyap. RW1 Mr. Harish C. Kashyap in his crossexamination has deposed that "My children were born on 27/08/1957, 29/12/1959 and 30/01/1965". The Rent Deed Ex.
(Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 33/52 PW1/D1 was executed on 25/01/1967. Obviously on 25/01/1967 Ms. Kokila Kashyap, Ms. Vandana Kashyap and Master Sanjeev Kashyap were minors on the date of execution of the Rent Deed Ex. PW1/D1. The question that requires determination is whether a lease can be executed in favour of a minor acting through a guardian.
As per case law Pramila Balidas & Ors. Vs. Jogesher Mandal AIR 1918 Patna 626 a lease in favour of a minor which imposes a liability upon the minor is null & void and cannot confer any right or title upon him. Also in view of case law reported as Jaykant Harkishandas Shah Vs. Durgashanker Valji Pandya AIR 1970 Gujrat 106 lease cannot be created in favour of a minor acting through a guardian. Lease by a minor is also void in view of case law reported as AIR 1931 Madras 147. As such to my mind Miss. Kokila Kashyap, Miss. Vandana Kashyap and Master Sanjeev Kashyap cannot be said to have become "tenants"/ "lessee" in respect of premises in suit by virtue of Rend Deed Ex. PW1/D1. Thus they are not at all necessary parties to the present eviction petition.
Also, even otherwise, it is not the case of the respondents that even after attaining majority, Miss Kokila Kashyap, Miss Vandana (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 34/52 Kashyap or/and Mr. Sanjeev Kashyap ever asserted their, alleged, right qua the premises in suit. Also interest, if any, of these persons qua the premises in suit stands duly represented by the respondents herein & it is not the case here that there is collusion between the petitioner and respondents herein. Further notice Ex. PW1/D2 cannot by its own create a relationship of landlord and tenant between petitioner and Ms. Kokila Kashyap, Ms. Vandana Kashyap and Mr. Sanjeev Kashyap unless and untill such a right stands created by Rent Deed Ex. PW1/D1. Relationship of landlord and tenant come into existence by the act of parties to the contract who are adidem and such like right cannot be created or be deemed to have come into existence by virtue of contents of a notice issued by a lawyer on behalf of the landlord/lessor or merely by reason of issuance of rent receipt in a particular name. Further respondent no.1 in his cross examination has deposed as under : "Q. Since 1967 till the date litigation with Mrs. Saroj Tandon commence in a court of law qua the premises in suit, did any of your children ever assert their tenancy right in respect of the premises in suit, if so when and how?
Ans. They are tenants in their own rights.
(Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 35/52 Q. Did any of your children ever assert in the previous litigation in respect of the premises in suit that they were also tenants in their own right in the premises in suit?
Ans. No."
Further in view of Rent Deed Ex. PW1/D2 it cannot be said that tenant in respect of premises in suit was "H.C. Kashyap HUF".
In view of above detailed discussion it is held that this eviction petition is not bad for nonjoinder of necessary parties.
14. EVICTION PETITION WHETHER BAD ON THE GROUND OF PARTIAL EVICTION As per petitioner premises in suit is described in site plan Ex. P2. Further, as per petitioner, respondents have encroached upon open Verandah in front of the premises in suit. The covered Verandah, covered unauthorisedly, has been shown in blue colour between the points EFAB. Sh. Atual Kr. Garg the then ld. ARC Delhi vide judgment Ex. P1 has held that tenant/respondents have covered the verandah is utter violation of the provisions of the Lease Deed. Also it has come on record that appeal against the said judgment Ex. P1 is pending adjudication. Judgment Ex. P1 has to be taken as correct and (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 36/52 proper unless and until it is set aside by Hon'ble Rent Control Tribunal and mere pendency of appeal is to consequence.
As regards unauthorisedly covered verandah the stand of the respondents is that on either side of premises in suit there are shops nos. 50 and 49B & both the occupants of the said adjoining shops have put up partition & thus segregating their shops. As alleged, respondents have not put up any partition on either side in the Verandah. Admittedly respondents have installed a shutter, as alleged, to protect premises in suit. Thus the fact remains that respondents are also using/are in occupation of the verandah portion along with the premises in suit & their user/occupation of the verandah area is soley incidental to their possessing the premises in suit a tenants.
In these circumstances, if an eviction order is passed against the respondents qua the premises in suit, in my considered opinion, respondent are also liable to be evicted from the verandah area. As per case law R. Ramanujam Vs. Ajit Singh etc. 1976 Rajdhani Law Reporter 378 if eviction is sought of portions in addition to tenanted premises, then eviction petition cannot fail on that ground. Thus this eviction petition in maintainable even qua the verandah area in front (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 37/52 of the premises in suit.
15. NONAPPEARANCE OF PETITIONER IN WITNESS BOX PW1 Mr. Anshu Tandon in his affidavit Ex. PW1/A has deposed as under : "That I am the (natural born) son as well as the General Attorney of the petitioner, Mrs. Saroj Tandon. I am fully conversant personally with the facts and backgrounds of this lis. Each and every facts, plea and averment pertaining to (or even relating to) this case is in my personal knowledge. I am competent to depose about the same (as they are all to my own personal knowledge).
My mother is aged and infirm. She is suffering from arthritis in the knees and is also a patient of acute hypertension. Even though she moves around, she is not in a position to attend court as that by itself aggravates her blood pressure and also causes her acute agony (because of the pain that she suffers due to arthirits). Hence, under medical advice she refrains from appearing as a witness in this cause. I am constrained to do so (keeping in view her illhealth). Even otherwise, the facts being to my knowledge I am in a position to depose about them."
There is no crossexamination on the above depositions and (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 38/52 hence these depositions can be accepted as correct. Also in the facts and circumstances of this case no prejudice in their defence has been caused to the respondents on account of nonappearance of the petitioner in the witness box in as much as all the material question put to PW1 Mr. Anshu Tandon in his cross examination stands answered by him. In view of the case laws reported as Kanta Bali Vs. Kalawati Devi 58 (1995) DLT 4 ; Chander Kanta Singhal etc. Vs. M/s. Kapadia Exports & Anr. 65 (1997) DLT 926 (DB) and Nandlal Vs. Mundras Devi 147 (2008) DLT 749 and in the facts and circumstances of this case, nonappearance of the petitioner in witness box is inconsequential.
16. SEALING OF KIOSKS AND SURRENDER THEREOF As per PW1 Mr. Anshu Tandon, petitioner, her mother, and he was caraying on business under the name and style of M/s. Kit Kat Restaurant at kiosks no. I and II near BSES Office/Petral Pump at Nizamuddin West New Delhi110013. Further, as per petitioner, the said kiosks were licensed on year to year basis by MCD but the said kiosks were sealed by MCD on 7/05/2008 without prior intimation or (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 39/52 notice whatsoever and subsequently petitioner surrendered the kiosks on 16/02/2009 with a view to maintain austerity, as well as realising that MCD was in no mood to resolve the sealing matter or even relent its high handedness and thus petitioner has ceased to be a licensee of the kiosks under MCD.
The respondents in their Written Statement have taken a stand that petitioner and her son are in possession of the kiosks where they are running their restaurant business. Further stand of the respondents is that merely because the place of business, Kiosks of the petitioner were sealed temporarily (as stated by petitioner) that too on account of petitioners fault, petitioner cannot make such sealing a ground for bonafide requiring the premises in suit. As regards surrender of kiosks, stand of the respondents is that alleged surrender was deliberate and malafide.
Regarding sealing and surrender of the kiosks PW1 Mr. Anshu Tandon has been made to depose as under : "It is wrong that we had encroached upon areas which was not alloted to us at Nizamuddin West, New Delhi. It is correct that I filed an affidavit dated 14.05.2008 before the monitoring (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 40/52 committee that we shall abide by all the guidelines and norms issued regarding the kiosks and that we will remove the encroachment Vol. This affidavit was dictated by the Junior Engineer, one shakil on enquiring what was needed to be done to have the kiosks Desealed. I do not know if the kiosks was sealed because of our own fault of encroachment. Vol. no. prior intimation or notice whatsoever was served either by the Monitoring Committee or by Municipal Council of Delhi in regard to sealing of the kiosks. The alleged surrender of the kiosks to MCD was made by us after the filing of this suit. It is wrong to suggest that the alleged surrender was deliberate and malafide. ........................................ I do not know if the alleged surrender has been accepted by the MCD. I have letters from MCD after the surrender. Vol. in reply to RTI applications made in regard to surrender of kiosks. ..................................................................... Nothing was given to us in writing by the officials of MCD at the time of sealing the premises as mentioned in para. P of any affidavit. Vol. till date I do not know why the premises weer sealed ......." The above crossexamination suggest that respondents accepts both the things i.e. the kiosks have been sealed by MCD and that petitioner has surrendered the kiosks to MCD.
(Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 41/52 As per PW 1 Mr. Anshu Tandon, petitioner made numerous representations including Ex.P 9 to P 10 requesting MCD/Monitoring committee to deseal the Kiosks. Further to prove that petitioner has surrendered the Kiosk to MCD petitioner has placed on record Ex. P11 and P12.
RW 1 Mr. Harish C. Kashyap in his cross examination has deposed as under: "I did not visit the site of the Kiosks either at the time I filed my affidavit seeking leave to contest the eviction petition or at the time I filed the written statement or even when I had sworn the affidavit Ex. RW1/A to verify myself as to whether the Kiosks had been sealed by the Monitoring Committee/MCD or not. We have disputed the sealing as mentioned by the petitioner because we have no letter or communication available from the authorities the sealing of the said Kiosks".
Further RW 1 Mr. Harish C. Kashyap in his cross examination has deposed as under: "In the written statement filed by me in the present record I had said that the sealing of the Kiosks was temporary, because I am aware that (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 42/52 all sealings carried out by the MCD are temporary in nature and desealing is done after the obligations are fulfilled. I had not personally checked before filing the written statement as to whether the sealing had actually been done at site or not."
Even further RW 1 Mr. Harish C. Kashyap has deposed in his cross examination as under: "Q. I put it to you that since 7th May 2008 till today all commercial establishment on main Mathura Road starting from the Neela Gumbad outside, Police Station Nizamuddin till the T. Point to Railway Hazrat Nizamuddin are lying sealed on the directions of the Monitoring Committee. What do you have to say?
Ans. I do not know."
Further RW 1 Mr. Harish C. Kashyap in his cross examination has deposed as under: "During the last 25 months immediately prior to today I have never visited the Kiosks in reference at Nizamuddin West. I have no idea if any family member of mine including my wife has done so. I cannot affirm or deny the suggestion that my plea that Kiosks at Nizamuddin have not (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 43/52 been sealed is unfounded and baseless. I do not know and therefore I cannot affirm or deny that my plea that the Kiosks has not been sealed, is not based on my personal knowledge. I do not know and therefore I cannot affirm or deny the suggestion that the said two Kiosks at Nizamuddin West are lying sealed continuously for last 25 months. I do not know and therefore I am not in a position to affirm or deny the suggestion that even after receiving the summons of institution of this petition I did not visit the Kiosks in reference because I was aware that the Kiosks had been sealed by the MCD."
Further RW 1 Mr. Harish C. Kashyap in his cross examination has deposed as under: "I have made no attempts to verify the factum of the petitioner and her family members having surrendered the Kiosks in reference to the MCD.
The contents of para 17 are based on the facts that I have no information of the surrender of the Kiosks in reference. I do not know that even today the Kiosks are lying sealed as they were on 07.05.2008.
Q. I put it to you that your plea that Kiosks in reference were never sealed is a baseless, false and farcical plea. What do you have to say?
(Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 44/52 Ans. The petitioner has herself informed us through this eviction petition that the said Kiosks have been sealed by the MCD etc. Q. Have you or your family member during the last two years invoke your rights under the Right to Information Act, 2005 to know the status of the Kiosks in question either in the records of the MCD or in the office of the Monitoring Committee?
Ans. I myself has never done so. Again said I do not remember.
Q. I put it to you that for the last more than one year the petition or her family members no right to use the said Kiosks, in as much as the said right to use the same has been surrendered by the petitioner to the MCD. What do you have to say? Ans. I do not know."
In view of above material it can be safely concluded that Kiosks in question were sealed on 07.05.2008 and they are lying in sealed condition till the date of examination of RW 1Mr. Harish C. Kashyap and further that petition has surrendered the Kiosks by petitioner to MCD on 16.02.2009.
As per respondent, Kiosks were sealed due to encroachments made by petitioner. But, RW 1 Mr. Harish C. Kashyap in his cross (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 45/52 examination has deposed as under: "After the filing of the written statement in this case and the date on which the affidavit Ex. RW1/A was sworn by me, I did not visit the Kiosks in question. I have seen the photographs on record. I cannot identify any of them. I do not know as to how much area and in which direction from the said Kiosks was encroached upon by the petitioner. I cannot even say as to what was/ is the area of the said Kiosks."
Further RW1 Mr. Harish C. Kashyap in his crossexamination has deposed as under: "Q. In your previous cross examination you have told us about certain ' obligations' which one has to carry out to ensure that a seal put by the monitoring committee and the NDMC is removed, and the property desealed. Please tell us what are, according to you, those obligations? Ans. Removing Encroachments.
I have not made any attempts to ascertain as to what were the encroachments if any in the Kiosks or around the Kiosks in reference.
Q. I put it to you that there were no
(Anand Swaroop Aggarwal)
SCJCumRC/New Delhi
Eviction Petition (Old) No. E45/08
Eviction Petition (New) No. 71/09
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encroachment in or around the Kiosks in
reference.
Ans. I do not know."
However, respondent is relying upon one reply under the RTI (Marked as Mark X for identification purposes) as per which the Kiosks were sealed due to encroachment around the Kiosks for running the restaurant and the encroachment was day to day for sitting arrangement of customers and goods for running the restaurant. To my mind, in view of above referred depositions made by RW 1 Mr. Harish C. Kashyap, it would not be safe to rely upon the reply under RTI Mark X because the source of information mark X has not been subjected to cross examination by/on behalf of the petitioner. The Respondents have neither examined any witness from the MCD as to the cause of the sealing nor himself has been able to substantiate the stand that sealing was due to encroachments made by petition. Whatever may be the reason of sealing of the kiosks, the facts remains that Kiosks are lying sealed with effect from 07.05.2008. In any case it is not the case of the respondents that kiosks have been got sealed by the petitioner herself in collusion with (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 47/52 the MCD for the sole purpose of getting an eviction order against the respondents qua the premises in suit. Thus the reason as to why kiosks have been sealed is not to any consequence(s).
17. BONAFIDE REQUIREMENT OF THE PETITIONER AND AVAILABILITY OF OTHER SUITABLE ACCOMODATION As per petitioner after the sealing of the Kiosks in question, her family business (i.e. restaurateurs) is at an absolute standstill. Undisputedly prior to the sealing of the Kiosks, petitioner was running the restaurant business at the Kiosks under the name and style Kitkat Restaurant.
RW 1 Mr. Harish Kashyap in his cross examination was deposed as under: "I do not know as to what the petitioner and her son Sh. Anshu Tandon are doing for the last 25 months.
Q. I put it to you that for the last 25 months the petitioner as well as her son Sh. Anshu Tandon are jobless, idle and are sitting at home.
Ans. I do not know."
Thus, it can be said that after the sealing of the kiosks, petitioner and her son have become jobless. As per petitioner, on (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 48/52 account of sealing of the kiosks on 07.05.2008 only, petitioner's requirement for the premises in suit came into existence. This eviction petition has been filed on 03.07.2008 only after the sealing of the Kiosks on 07.05.2008. To my mind, in the facts and circumstances of this case no malafide can be inferred on the part of the petitioner merely because she had rented out Flat no. 35, First & Second floors, Khan Market, New Delhi and shop No. 35 A and B Ground floor, Khan market, New Delhi in as much as it was done in the year 2005 and 2007 vide Ex. P13 and Ex. P14 much prior to 07.05.2008 on which date the cause of action had arosen for filing of this eviction petition.
The landlord right to deal with the properties owned by him is not dependant on the convenience or inconvenience to the tenant. Nothing has been brought on record by the respondents to show that necessity for the petitioner to shift her restaurant business from the Kiosks had arosen even prior to 07.05.2008. Also it is settled law that petitioner/landlord is the best Judge of his/her requirements. As already observed petitioner has surrendered the Kiosks in question to MCD. Further, respondents have not brought on record any material (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 49/52 to show that petitioner has at her disposal any other property where she can shift her family business of restaurant.
Also, to my mind, no malafides can be attributed to the petitioner in the facts and circumstances on account of contents of para 10 of the notice Ex. PW 1/D 2. The said notice is dated 12.10.2001 but the present eviction petition has been filed in the year 2008.
There is one more aspect to be kept into mind, while considering the availability of other reasonably suitable accommodation. This is besides the factum that in the present case otherwise case of the petitioner is that petitioner has surrendered the Kiosks to the MCD. As per Ex. P5 to Ex. P8 petitioner was holding the kiosks on licence fee basis from the MCD Right of the licencee is more or less at the mercy of the licensor, therefore, availability, if so, of such a accommodation does not debar the petitioner/landlord for seeking eviction of the tenant under section 14(1) (e) DRC Act from the premises in suit.
Also licence fee payable by petitioner for the Kiosks in question was much more than the rent being received by the (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 50/52 petitioner from the respondents qua the premises in suit. On this account also requirement of petitioner can be said to be bonafide requirement.
In the totality of the facts and circumstances of this case I have no reason to attribute malafides on the part of the petitioner in seeking eviction of the respondents from the premises in suit.
Also concept of comparative hardship has no application so far so ground of eviction 14(1)(e) DRC Act is concerned as the said principle has not been incorporated in the DRC Act or by the Hon'ble Supreme Court of India in the judgment of Satyawati Sharma or any other judgment. In case law reported as Navin Kr. Goel Vs. Jawahar Lal Wahi 33 (1987) DLT 338 it has been held that there is no provision for considering comparative hardship in Delhi. NET RESULT In my considered opinion in view of above detailed discussion, it can be said that petitioner has been able to prove her case on judicial file to entitle her to an order of eviction in her favour and against the respondents in respect of premises as detailed/described in site plan Ex. P2 including the potion shown in blue colour between (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 51/52 the points EFAB as verandah unauthorizedly in use and occupation of the respondents alongwith shop No. 49A, Khan Market, New Delhi (i.e. the premises in suit). Ordered accordingly. Also petitioner shall be entitled to cost of the eviction proceedings. In view of the provisions of 14 (7) petitioner shall not be entitled to obtain possession of property detailed in Ex. P2 before the expiration of six month from today. File be consigned to RR.
Pronounced in open court.
(Anand Swaroop Aggarwal) SCJCumRC/New Delhi 10.08.2010 (Anand Swaroop Aggarwal) SCJCumRC/New Delhi Eviction Petition (Old) No. E45/08 Eviction Petition (New) No. 71/09 Page 52/52