Delhi District Court
Bhartiya Baudh Mahasabha vs Sh. Dhan Kumar Jain on 5 April, 2019
IN THE COURT OF SH. ANKIT SINGLA: ADDITIOAL RENT
CONTROLLER, NORTH EAST: KARKARDOOMA COURTS:
DELHI
RC ARC no.45/16
CNR no.DLNE030004872016
In the matter of
Bhartiya Baudh Mahasabha
through its President
Sh. Yashwant Singh Gautam
its branch office at D38/1,
New Seelampur, Delhi110053. ................. PETITIONER
Versus
1.Sh. Dhan Kumar Jain
S/o Late Sh. K. C. Jain
R/o C12/544, Yamuna Vihar,
Delhi110053.
2. Sudesh Kumar Jain
S/o Sh. I. S. Jain
shop bearing pvt. no.6,
property no.D38/1,
New Seelampur, Delhi110053 .................RESPONDENTS
Date of Institution : 04.04.2016
Date of reserving the judgment : 30.03.2019
Date of Judgment : 05.04.2019
Decision : Allowed
RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 1 of 28
JUDGEMENT:
1. Vide this judgment, I shall decide the present petition under Section 14(1)(e) read with Section 25B and Section 22 of the Delhi Rent Control Act (hereinafter referred as DRC Act) moved by the petitioner for eviction of respondent from the tenanted shop bearing no.6 located in property number D38/1, New Seelampur, Delhi53. (The tenanted shop is mentioned as suit shop and property number D38/1, New Seelampur, Delhi is mentioned hereafter as suit property).
2. Briefly stated the facts as averred in the application are as follow:
a) It is submitted that the petitioner is a registered society under the Society Registration Act and its branches are affiliated with the state body. The petitioner is the owner of the entire built up property measuring 160 sq. yards. There are nine shops at the ground floor including the suit shop which is shop no.6, forming part of suit property.
b) It is submitted that there is idol of Lord Buddha situated at the ground floor and the petitioner is looking after the same. Since 1517 years, petitioner let out the suit shop forming part of the suit property for a period of eleven months to respondent no.1 at a monthly rent of Rs.215/ per month. In the month of January, 2009, respondent no.1 sublet the above mentioned tenanted shop RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 2 of 28 to respondent no.2 without the consent and permission of petitioner.
c) It is further submitted that the respondent no.1 is in arrears of rent since January, 2003. It is submitted that the suit shop was let out for commercial purpose and now the same is required for bonafide need of the petitioner. It is submitted that with the passage of time, the number of followers have increased and the society need more accommodation for its separate office.
d) It is submitted petition u/Sec. 14(1)(e) read with Section 25B of the Delhi Rent Control Act was moved by the petitioner against respondents and said petition was allowed and eviction order was passed vide order dated 16.04.2014, but respondent no.1 in that case moved a revision petition whereby judgment in favour of petitioner was setaside. While setting aside the judgment, Hon'ble Delhi High Court gave liberty to the petitioner to file fresh petition under such provision of the Delhi Rent Control Act as may be permissible in law.
e) It is further submitted that earlier the name of the society was "The Buddhist Society of India". Now same has been changed as "Bhartiya Baudh Mahasabha" and Sh. Yashwant Singh Gautam is the President of the petitioner society.
3. Notice of the petition was sent to respondents for enabling him to file reply to the petition. Application for leave to defend RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 3 of 28 was filed by the respondent, which was allowed by the Court vide its order dated 09.01.2017. Through this order, the application for leave to defend was also treated as Written Statement of respondent.
4. Application for leave to defend was filed by the respondent no.1, wherein, it is stated that the petitioner has tried to misled the court. It is submitted that earlier also the petitioner had filed a similar petition under Section 14(1)(e) of DRC Act, wherein the ld. ARC came to the conclusion that petition ought to have been filed under Section 22 of the DRC Act and not under Section 14(1)(e) of DRC Act and while treating the said petition to be under Section 22, passed an eviction order. The respondent no.1 filed revision petition against the said order. The Hon'ble High Court while setting aside the said order held on 14.12.2015 that there was a jurisdictional error in the earlier eviction petition as the same was filed under Section 14(1)(e) and the eviction order was passed under Section 22 of DRC Act and held that in case of public institution seeking eviction on the ground of bonafide necessity for furtherance of its activities, the ordinary summons is to be issued under Section 22 and not under the third schedule, because summary procedure is applicable only in certain cases as prescribed specifically under Section 25B of DRC Act i.e eviction petition under Section 14(1)(e), 14A, 14B, 14C and 14D only. The petitioner now in order to take advantage of summary procedure and to make unnecessary RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 4 of 28 pressure upon the respondent no.1 has moved the present petition by clubbing both the provisions. It is submitted that the petitioner ought to have filed the present petition under Section 22 of the DRC Act independently. Hence, petition is not maintainable.
5. It is further submitted that the petitioner is not the owner of the premises and respondent no.1 is running his business and earning his livelihood. It is submitted that the petitioner has not filed even a single document to prove their ownership. It is submitted that the land belongs to Delhi Urban Shelter Improvement Board and respondent has confirmed that petitioner has not been allotted suit property by Delhi Urban Shelter Improvement Board. The respondent has annexed the copy of the RTI application and its reply. It is denied that the petitioner is registered society or it has any constitution. It is submitted that the land in question is government land and petitioner has put the idol of lord Buddha in the name of false representation of society and respondent and other occupants of different shops are forced to pay rent to the petitioner under pressure of eviction.
6. It is further submitted that the present petition is not for bonafide need, rather the same has been filed with malafide as the President of the petitioner society has filed the present eviction petition for his own benefit, because he is already running his business and engaged in selling goods in front of the RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 5 of 28 gate of the Temple situated in the suit property. It is further submitted that the President of the petitioner society is a greedy person and in order to extort money, he has filed the present eviction petition, which is evident from the acts of the President, who after getting vacated a tenant from shop no.5 again relet the same to a new tenant after receiving huge sum on the pretext of security/pugree i.e Rs.11,50,000/ and that too in the year 2012 only. It is further submitted that mere desire cannot be considered as a bonafide requirement and the petitioner wants to evict the respondent no.1, who is earning his bread and butter from the tenanted premises and is supporting his family.
7. It is further submitted that the present petition has been moved with malafide purpose which is apparent from the fact that the President of petitioner society is running his business by putting stall in front of the entry gate of the temple thereby closing the ingressegress for the followers, which makes it clear that no follower visits the temple. The site plan filed by the petitioner is also disputed. It is submitted that ample space is available with the petitioner for the temple and even if respondent no.1 get evicted the same is not of any use to the petitioner because they have already parted with the intervening shop i.e shop no.5 by letting the same on receiving huge pugree amount and until the said shop is evicted, the shop of the respondent cannot be joined with the hall of temple. It is further submitted that the property of the petitioner is a double storey building, wherein even the first floor is completely covered and RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 6 of 28 well constructed and the second floor is terrace with some construction apart from open space. It is further submitted that the petitioner deliberately stated in the site plan filed by them that on the first floor, construction is going on, whereas it is submitted that the first floor is already constructed and respondent has also enclosed the photograph showing the exact position. It is further submitted that the property in question is situated in slum area and permission is necessary to institute any eviction proceeding under Section 22 of DRC Act. The copy of one demand letter issued to nearby resident namely Sh. Lekh Ram by the slum department is annexed with the reply.
8. Reply was filed by the petitioner to WS of respondent no.1, wherein, it is stated that the respondent is a dishonest tenant and he has no respect for the law. It is submitted that respondent has very specifically and clearly admitted that he is tenant in respect of the tenanted shop. The respondent himself sent the rent for last few months in the name of the petitioner. It is further submitted that the petitioner is the landlord of the suit property and respondent never contested his ownership since the inception of the tenancy. It is further submitted that nobody except the petitioner ever claimed rent from the respondent nor anybody filed any complaint or suit against the petitioner for trespassing the suit property. It is further submitted that the respondent for last few months used to pay rent to the petitioner and he neither paid the rent to anyone else nor pleaded that anybody else, except, the petitioner had asked him to pay the RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 7 of 28 rent despite knowing all these facts, the respondent took false defence that petitioner is not the landlord of the suit premises, which shows that respondent is a dishonest person and is not having any respect for the law. It is further submitted that the respondent has tried to mislead the court by submitting that petitioner has no bonafide requirement of the suit property. It is further submitted that the respondent has no authority to decide the law. It is further submitted that the petitioner is required to enhance the temple space as number of followers are increasing with the passage of time. It is denied that the suit property belongs to slum department and same is situated in slum area. The ld. Predecessor of this Court vide order dated 09.01.2017 treated the application for leave to defend as WS and fixed the matter for petitioner evidence.
9. Petitioner examined Sh. Yashwant Singh Gautam as PW1. This witness tendered his evidence by way of affidavit Ex. PW1/1. This witness was cross examined at length. This witness relied upon following documents:
Ex. PW1/A Site plan.
Ex. PW1/B Authority letter dated 31.12.2015.
Ex. PW1/C Photographs (colly) ( 1 to 42 in
numbers)
Ex. PW1/D Certified copy of the judgment dated
11.03.2015 passed by ld. Predecessor
of this Court.
Ex. PW1/E Certified copy of the order dated
14.12.2015 by Hon'ble High Court of
Delhi.
Ex. PW1/F Legal notice dated 16.02.2016.
RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 8 of 28
Ex. PW1/G Postal receipt(colly)
Mark A Copy of certificate of registrar dated
17.07.2014.
10. PW2 is Sh. Atul Kumar. This witness tendered his evidence by way of affidavit Ex. PW2/1. However, this witness did not appear for his crossexamination, therefore, his evidence remained incomplete. Accordingly, same cannot be read in evidence.
11. Thereafter, PE was closed and matter was fixed for RE.
12. RW1 is Sh. Dhan Kumar Jain/respondent no.1. This witness was crossexamined at length. This witness relied upon the following documents.
Ex. RW-1/A Certified copy of order of revision petition under Section 25-B(8) of DRC Act.
Ex. RW1/B(OSR) Copy of reply of RTI dated
04.02.2016, 19.02.2016, 29.02.2016,
04.05.2016 and 02.02.2016.
Ex. RW1/C(OSR) Copy of reply send by Registrar of
Society dated 07.03.2016 and
13.04.2016.
Ex. RW1/D Rent Agreement dated 10.02.2012.
Mark D Two photographs
Ex. RW1/F Site plan
Mark E CCTV footage in portable hard disk.
Ex. RW1/H 5 photographs of the property
Mark F Copy of demand letter issued by
slum board.
RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 9 of 28
Mark G Copy of the agreement/receipt dated
02.08.1990.
13. Thereafter, RE was closed and matter was fixed for final arguments.
14. Final arguments were heard from counsels for both parties. I have considered the arguments of Ld. Counsels for both the parties and gone through the record.
15. During dictating the judgment, it was noticed by this Court itself that the proceedings were going in absence of respondent no.2 and no order has been passed declaring him ex parte. Even the service to him was not complete. The petitioner never pressed for presence of respondent no.2. The petitioner pursued his petition against respondent no.1 only. No purpose would be served by seeking presence of respondent no.2. Accordingly, the proceedings against respondent no.2 deemed to be withdrawn. Even otherwise, respondent no.2 is stated to be subtenant without permission. A subtenant without permission is not a necessary party in a petition for eviction of a tenant for bonafide need. A subtenant without permission of landlord is bound by the order of eviction passed against a tenant. Accordingly, he was joined uncessarily as a partly. Accordingly, the present judgment is passed against respondent no.1 only.
16. Before proceeding further, it is necessary to note that the present petition was filed under Section 14(1)(e) read with RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 10 of 28 Section 22 of the DRC Act.
17. Ld. Predecessor of this Court vide order dated 09.01.2017 had categorically held that present petition is maintainable under Section 22 of the DRC Act, therefore, provision of Section 14(1)(e) read with Section 25B of DRC Act is not applicable and thus dismissed petition under section 14(1)(e) of DRC Act.
18. Ld. Counsel for the respondent has contended during final arguments that the scope of present petition is left only under Section 22(d) of the DRC Act as ld. Predecessor of this Court had categorically held that Section 14(1)(e) of DRC is not applicable. He further argued that the petitioner is only a religious institution and not a public institution, therefore, petition u/sec. 22(d) of DRC Act is also not maintainable and, therefore, must be dismissed.
19. I have given my thoughtful consideration to aforementioned contentions and gone through the complete order dated 09.01.2017. The relevant excerpt of the order dated 09.01.2017 passed by Ld. Predecessor Sh. Prashant Sharma, ld. ARC, North East are reproduced below:
"Today this matter is fixed for arguments on the application for leave to defend. During the course of arguments, there are certain legal aspects, which need clarifications and both the counsels for the parties have consensus adidem on those aspects. These are mentioned below so that this case can be decided as per law, at the earliest.RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 11 of 28
Petitioner, in this case, is a charitable society, which is an admitted fact. Petitioner requires the tenanted premises in question for its bonafide need and it is Section 22 of DRC Act, which is applicable on the facts and circumstances of this case. Section 14(1)(e) r/w Section 25 B of DRC Act are not applicable. If it is so, then rigors of Section 14(1) of DRC Act goes out of the ambit of this case. The issues involved in this case, therefore, have to be decided within four corners of law laid down in Section 22 of DRC Act. Amongst all the Clauses mentioned in Section 22 of DRC Act, this case is covered by clause (d) of the said section.
The net result is that this petition has to be decided on the basis of issue raised by the respondent, which need trial. So far as, bonafide need is concerned, onus of proving the same rest on the petitioner. Further, respondent has challenged the petition on the ground that same is barred as permission from Slum Authority as per law is not taken by the petitioner and onus of proving it rest on the respondent. Besides that, respondent has not challenged any other aspect, as mentioned in the petition an evidence will be led by the parties with respect to aforesaid aspect only. For removing doubts, the aforesaid issue are categorically mentioned below:
Issue no.1 Whether the petitioner has bonafide need to required the tenanted premises in question or not?OPP.
Issue no.2. Whether the petition is barred on account of petitioner not getting the permission from the Slum Authority as per law?OPR.
Here, I must mention that the relationship between the parties is not disputed and the rate of rent is also not disputed. Application for leave to defend filed by the respondent will be treated as written statement.
Both the parties are specifically told to limit their evidence with respect to the issues settled before above and not beyond that."
20. The perusal of the abovementioned order clearly shows that the ld. Predecessor of this Court had categorically held that it is admitted fact that petitioner is a charitable society. As a RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 12 of 28 result, it was also held that Section 22(d) of the DRC Act is applicable and Section 14(1)(e) read with Section 25B is not applicable. There is no dispute that the said order has attained finality as none of the parties laid any challenge to it before superior court.
21. In my considered opinion, the order dated 09.01.2017 has to be read in totality and not in parts as contended by ld. Counsel for the respondent. It is true that ld. Predecessor of this Court had held that Section 14(1)(e) of the DRC Act is not applicable, but in the same order, it has also been held that the present petition is governed by Section 22(d) as petitioner is a charitable society. The finding that the petitioner is a charitable society and Section 22(d) of the DRC Act is applicable, has attained finality, therefore, the said order cannot be reviewed by this Court. As a result, it stands conclusively decided by the ld. Predecessor of this court that petitioner is a public institution.
22. Further, it has been observed by the court that aforesaid order was passed by ld. Predecessor Sh. Prashant Sharma, the then ld, ARC on the basis of consensus of both the parties. The same is clear from para 1 of the aforesaid order dated 09.01.2017. The aforesaid order further reflects that since, respondent had not taken any other ground to challenge the petition, except the grounds which were incorporated as issues. Ld. Predecessor was pleased to direct the parties not to lead evidence beyond the aspects on which issues were framed. Thus, RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 13 of 28 in view of the position taken by the respondent only, the petition under Section 14(1)(e) of DRC Act was dismissed and it was held that the petition under Section 22(d) of DRC Act is maintainable and it was further directed that parties can lead evidence only on aspects which formed part of issues. Therefore, now respondent cannot change his stand and say that petition under Section 22(d) of DRC Act is not maintainable as the petitioner is not a public institution.
23. The perusal of application for leave to defend which was treated as WS by ld. Predecessor in the aforesaid order reflect that the respondent had taken the stand that petitioner ought to have filed the petition under Section 22 of the Delhi Rent Control Act, 1958, because, in case of public institution seeking eviction on ground of bonafide necessity for furtherance of its activities, the ordinary summons is to be issued under Section 22 and not under third schedule, because the summary procedure is applicable only in certain cases prescribed under Section 25B of the DRC Act.
24. It is further mentioned in para eight of application for leave to defend that any petition by public institution seeking furtherance of its activities has to be filed independently under Section 22 of DRC Act and not by clubbing with any other provision and since, petitioner has clubbed petition under Section 22 with 14(1)(e) of DRC Act, same is not maintainable and therefore liable to be dismissed.
RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 14 of 2825. The aforesaid averments in the application for leave to defend of respondent no.1(treated as WS vide order dated 09.01.2017 passed by ld. Predecessor of this court) clearly shows that the fact that the petitioner is a public institution is admitted by the respondent. A fact which is once admitted by the respondent cannot be allowed to be disputed by him at the stage of final arguments particularly, when respondent has taken advantage of such admission, because on the basis of said admission of respondent, the petition under Section 14(1)(e) of the DRC Act was dismissed by ld. Predecessor vide order dated 09.01.2017.
26. Hence, I do not find any force in the arguments of ld. Counsel for the respondent to this extent. Accordingly,I shall proceed further to decide the petition in the light of Section 22(d) of the DRC Act and on the basis of issues framed by ld. Predecessor. Though the proceedings under Delhi Rent Control Act are summary in nature, but since issues have already been framed, therefore, I will discuss the fate of the present case in issuewise manner.
Issue no.1 Whether the petitioner has bonafide need to require the tenanted premises in question or not?OPP.
27. The present petition has been filed by the petitioner on the ground that the petitioner is running a Buddhist Temple in property situated at D38/1, New Seelampur, Delhi, measuring 160 sq. yard and there is one Idol of Lord Buddha in RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 15 of 28 the said Temple. As per petitioner, with the passage of time, the number of followers have increased and therefore, more space is required for office of society for keeping the record.
28. In order to discharge the onus to prove that there is bonafide need, the petitioner examined PW1. This witness categorically stated that the tenanted premises is required for bonafide need of the petitioner as number of followers are increasing day by day and the more space is required for office of society for keeping the record.
29. During crossexamination this witness remained firm and no material contradiction could be brought by ld. Counsel for the respondent. The testimony of this witness that petitioner require the suit shop for enhancing the space for its office for keeping the record prima facie proves the requirement of petitioner of the tenanted shop is bonafide. The testimony of PW1 shifted the onus upon the respondent to prove otherwise.
30. In order to contest the bonafide need of petitioner, the different grounds have been mentioned by respondent no.1 in his pleading. The bonafide of petitioner is denied by respondent on the ground that President of petitioner has filed the present eviction petition for his own benefit, because, he is already running his business and engaged in selling goods in front of gate of Temple, thereby closing the ingress and egress for followers of Temple. It is also denied on the ground that the RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 16 of 28 present petition has been filed to extort money. It is submitted that the factum of extortion is evident from the fact that President after getting vacated a tenant from shop no.5 again re let the same to a new tenant after receiving huge sum on the pretext of security. The bonafide of petitioner is also denied on the ground that the petitioner does not require the premises for any purpose. It is submitted that without getting shop no.5, the petitioner would not be able to join the shop 1, 2, 3 and 4 with the hall of Temple. It is submitted that no eviction proceedings have been initiated against the occupant of shop no.5, which points to the fact that the petitioner does not intend to enhance the Temple space, but filed the present petition only to extort money from the respondent. The bonafide requirement of the petitioner has also been challenged on the ground that there are not sufficient Buddhist followers in the locality and therefore, there is no need to enhance the space and entire story put forth by the petitioner is concocted. It is submitted that most of time Temple remains locked and no pooja is being performed in the Temple.
31. The bonafide need of petitioner is also challenged on the ground of alternate space. It is further submitted that the property in question is a double story building and entire first floor is covered and well constructed and said space can be utilized to enhance the space for followers.
32. Since, several grounds have been taken by the respondent RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 17 of 28 no.1 to challenge the claim of bonafide need of the petitioner, I shall deal with each ground separately to decide whether respondent is able to prove the said grounds and thereby show that petitioner has filed the present petition malafidely i.e without any bonafide need.
33. The first ground taken by the respondent to deny the bonafide requirement of the petitioner that the present petition has been filed by the President of petitioner Sh. Yashwant Singh Gautam for his own benefit and for exhorting money. The onus to prove the fact that present petition has been filed by President of petitioner for his own benefit and for extorting the money was upon the respondent. In order to prove the same, the respondent has not led any evidence. In order to make court believe his claim that petitioner has filed the present petition for extortion, the respondent has merely stated that one shop bearing no.5 was got vacated by the petitioner, but after getting the vacated the same, the petitioner again relet the same after accepting huge money from new tenant. In his pleading respondent no.1 is silent as to on what ground the petitioner had got vacated the old tenant of shop no.5. No evidence has come on record that shop no.5 was got vacated by the petitioner on bonafide need. There may be several reasons to evict a tenant like a tenant has inducted a subtenant or tenant was default of payment of rent. So merely because the shop no.5 has been re let after accepting security of Rs.11,50,000/ to new tenant, it cannot be said that petitioner has also filed the present petition RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 18 of 28 to evict the respondent and then relet the same to new tenant on new rent or for extorting money.
34. The petitioner in its petition has categorically stated that it require suit shop for its office for keeping more record. They have also placed on record site plan showing the position of the suit shop as well as the suit premises where suit shop is situated. Ld. Counsel for petitioner during course of arguments stated that suit shop would be converted into office. It is submitted that shop no.6 is more suitable as same is adjoining the main gate and there is one store in the said shop. The respondent has not only disputed the site plan, rather it is also stated that without shop no.5, the hall cannot be enhanced. There is no averment in the application for leave to defend or in affidavit of evidence filed by respondent as to why shop no.6 cannot be converted into office. The perusal of site plan filed by both the parties clearly shows that shop no.6 is adjoining the main gate of the temple. The site plan filed by respondent further shows that there is one store room adjoining the shop no.6. There is no explanation given in the application for leave to defend/WS of affidavit of evidence by respondent as to why shop no.6 is not suitable and the need of petitioner could have been satisfied by shop no.5. Therefore, this court is of the view that respondent has failed to raise any plausible defence for disputing the bonafide need of the petitioner qua the suit shop in question.
35. During further crossexamination, respondent RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 19 of 28 categorically admitted that the rate of rent has not been increased since 1990. It is submitted that in 1990, Sh. Yashwant Singh Gautam had asked for enhancement of rent, but nobody turned up. The above averment shows that petitioner and its President are not greedy person and the present petition has not been filed to get the suit shop vacated and thereafter to relet the same at enhanced rent.
36. Further, no evidence has been filed on record that President of petitioner is going to be personally benefited, if shop in question is vacated. In such circumstances, this court is of the view that the respondent has miserably failed to prove that petitioner has filed the present petition for extortion of money and for benefit of President of petitioner.
37. The bonafide requirement of the petitioner has also been challenged on the ground that there are not sufficient buddhist followers in the locality and there is no need to enhance the space and entire story put forth by the petitioner is concocted. In order to prove that the large number of followers visit the shop, petitioner has placed on record 43 photographs. During cross examination, witness admitted photograph no. 1, 2, 6, 8, 50,57,58 and 59 to be correct. These photographs shows that large number of people visit the temple. These photographs also shows that various religious programmes are organized in the temple. From the photographs, it is proved beyond doubt that large number of people visit the temple.
RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 20 of 2838. The respondent also placed on record certain photographs showing that the suit property is locked. It is shown that these photographs were taken at about 4.50 pm and at that time main gate of the temple was locked. On strength of these photograph it is stated that no one visit the temple and temple remains locked. This court does not agree with the submission of counsel for respondent that as photographs filed by them reflect that gate is locked at 4.50pm, it must be inferred that temple remain closed for all the time and no one visit the temple. Every religious place has its own time schedule for opening, accepting visitors, etc. A temple cannot be expected to remain open for 24 hours x 30 days x 12 months. Therefore, merely because certain photographs have been filed showing the outer gate of the temple to be closed is not a reason to infer that no temple is being run from the suit shop and no one visit the temple.
39. Another contention of the respondent that number of followers of the buddhist religion in the locality is not huge, therefore, there is no need to enhance the space. This argument is also without force because devotees/visitors can come to a religious place/institution from far off places. Accordingly, in view of above, this court is of the opinion that respondent has failed to prove their contention that there is no need to enhance the space as there are not sufficient buddhist followers in the locality.
RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 21 of 2840. Another ground to challenge the bonafide need of the petitioner is ground of alternate space. It is stated that petitioner has entire built up first floor and petitioner can accommodate the followers at first floor. ld. Counsel for the petitioner contended that the suit shop is required for office purpose and not for accommodating the followers. There is no averment in the application for leave to defend/WS that requirement of office can be met by constructing the same on the first floor.
41. It has been held in a catena of judgments that the landlord is the best judge of his requirements and a tenant cannot dictate the terms on which the landlord should live. The Hon'ble High Court of Delhi in Adarsh Electricals & Ors. vs. Dinesh Dayal 173 (2010) DLT 518 has explained the expression 'reasonably suitable'. The relevant extract of the same is reproduced below for ready reference: "It is settled law that the question of accommodation, actually in possession of the landlord, being 'reasonably suitable' is to be judged solely in the context of physical sufficiency of the accommodation and that the Court may hold that accommodation is insufficient having regard to various circumstances, such as, the social status of the family or traditions and customs observed by it. As long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 22 of 28 to the Controller to weigh the claim of the landlord in a fine scale. The law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises is with a tenant."
42. The above judgment clearly shows that a tenant cannot dictate term to the landlord. The landlord is the best judgment of his requirement. The space on the first floor of the suit premises cannot be called as an alternate space for simple reason that the said space would not fulfill the requirement of petitioner. Even otherwise, it is for the landlord to see as to how it has to reconstruct the temple and where it has to construct its office. The respondent cannot tell petitioner to construct office at a particular place. Accordingly, there is no force in the contention of respondent that there is alternate space available with the petitioner.
43. Thus, in view of above discussion, the respondent has failed to discharge the onus to prove that need of petitioner is not bonafide. Accordingly, the issue is decided in favour of petitioner.
Issue no.2. Whether the petition is barred on account of petitioner not getting the permission from the Slum Authority as per law?OPR.
44. The onus to prove that the petition is barred on account of RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 23 of 28 petitioner not getting the permission from the Slum Authority as per law was upon the respondent as respondent has taken objection in his pleading that the land where the suit property is situated belongs to Delhi Urban Shelter Improvement Board and further same is situated in slum area and permission from slum authority is required.
45. Although, the present petition is being dealt under Section 22(d) of DRC Act for which, the petitioner is not required to show that it is owner and it is only required to show his status as landlord, but still as ownership of the petitioner has been challenged and on the basis of such contention, it is stated that the petition is not maintainable being barred by Slum Area Improvement and Clearance Act, I shall discuss in brief, whether the petitioner is owner or not for purpose of DRC Act.
46. As per Section 116 of Indian Evidence Act, a tenant cannot dispute the title of a landlord. Admittedly, the petitioner is the landlord of the respondent. There is no averment that during course of tenancy, petitioner has sold the suit property to someone else, therefore, by virtue of Section 116 of Indian Evidence Act, respondent is barred from disputing the title of the petitioner. Accordingly, it does not lie in mouth of respondent to to say that petitioner is not the owner of the suit property.
47. It would be also be apt to discuss the law regarding the proof of ownership for purpose of Delhi Rent Control Act. For RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 24 of 28 the petition under the Delhi Rent Control Act, the petitioner is only required to prove that it is more than a tenant. It has been held in Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RCR No. 136/12 that "it is settled law that in the context of Delhi Rent Control Act, what appears to be the meaning of the term 'owner' is that visavis the tenant i.e. the owner should be something more than the tenant." The position in law is that "The ownership" of the landlord for the purpose of maintaining a petition U/Sec. 14(1)(e) of the D.R.C. Act is not required to be a absolute ownership of the property and it is sufficient if the landlord is a person who is collecting the rent on his own behalf. The imperfectness of the title of the premises can neither stand in the way of an eviction petition U/Sec. 14(1)(e) of the Act, nor can the tenant be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord." Thus, from above it is clear that petitioner is only required to prove that he is more than tenant. Although, the aforesaid observation were passed by Hon'ble Court in a case under Section 14(1)(e) of the DRC Act, but there is no reason as to why the aforesaid observations should not be made applicable for other provision of DRC Act. In present case, it is admitted fact that respondent is paying rent to the petitioner only, therefore, the status of petitioner is more than tenant, hence, petitioner is owner qua the respondent for the purpose of DRC Act.
48. Even otherwise, in order to prove that the Delhi Urban RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 25 of 28 Shelter Improvement Board is the owner of the land where the suit property is situated, respondent has not led any evidence except producing some RTIs. In reply dated 23.02.2016, to the RTI filed by the respondent which is collectively exhibited as Ex. PW1/B, it is mentioned that the land of entire New Seelampur, JJR colony belongs to Delhi Urban Shelter Improvement Board. In another reply dated 19.02.2016, which is part of Ex. PW1/B only, it is stated that as per record available no allotment of land has been made by Institutional Allotment Land Branch ( Delhi Urban Shelter Improvement Board) to petitioner.
49. On basis of aforesaid replies to the RTI filed in Delhi Urban Shelter Improvement Board, the respondent has sought to prove that petitioner is not the owner of the land over which suit property is situated.
50. In Sudhir Engineering Company Vs. NITCO Roadways Ltd. 1995 II AD Delhi 189, the Hon'ble High Court of Delhi held that, "The mere marking of an exhibits does not dispense with the proof of documents". In the present case, the respondent has not summoned the maker of aforesaid replies to the RTIs filed by him. Further, no other evidence has been brought on record to show on what basis the maker of aforesaid replies, stated that the land falling in entire New Seelampur, JJR Colony belongs to Delhi Urban Shelter Improvement Board. No title documents in favour of Delhi Urban Shelter Improvement Board has been proved. Therefore, in light of aforesaid judgment RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 26 of 28 coupled with the fact that no evidence has been led to prove Ex. CW1/B, the exhibit Ex. CW1/B remained unproved and as such cannot be read into evidence.
51. Further, even if it is assumed that the land falling in JJR Colony, New Seelampur belongs to Delhi Urban Shelter Improvement Board, then also no evidence has been brought on record to show that suit property is situated in New Seelampur, JJR colony. Therefore, the contention of respondent that the land belongs to Delhi Urban Shelter Improvement Board remain unproved and thus cannot be believed.
52. The respondent has also failed to place on record any other evidence to show that the area where the suit property is situated has been covered by Slum Area Improvement and Clearance Act and as such the permission from slum authority is required before filing of eviction petition.
53. As per Section 3 of Slum Area Improvement Clearance Act 1956, any area may be declared in official gazette to be slum area. The petitioner filed original reply to the information under RTI Act, wherein it is replied by Delhi Urban Shelter Improvement Board that the area of New Seelampur, Delhi 53 does not fall under Slum notified area under Section 3 of Slum Areas improvement and clearance Act, 1956 and as such the area does not come within slum notified jurisdiction.
RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 27 of 2854. On the other hand, respondent neither filed any notification showing the applicability of Section 3 of Slum Areas Improvement and Clearance Act, 1956 nor examined any witness from Slum Authority to prove the applicability of Section 3 of Slum Areas Improvement and Clearance Act, 1956. Accordingly, in view of above, this court is of the view that respondent has miserably failed to that petition is barred on account of petitioner not getting the permission from the Slum Authority as per law.
55. No other ground has been taken in the pleadings by the respondent to challenge the present petition. As all the grounds taken by the respondent have been rejected, there is no reason to deny the relief of eviction to the petitioner. Accordingly, the present petition is allowed.
Relief
56. The present petition is allowed against respondent no.1 Sh. Dhan Kumar Jain. Respondent no.1 Sh. Dhan Kumar Jain is directed to be evicted under Section 22 of DRC Act in respect of one shop bearing private no.6, at the ground floor, forming part of property no.D38/1, Panchsheel Budh Vihar, New Seelampur, Delhi110053. File be consigned to the record room.
Announced in the open court (ANKIT SINGLA)
th
on 5 April, 2019 ADDITIOAL RENT CONTROLLER
Digitally signed NorthEast District, KKD
ANKIT by ANKIT SINGLA
SINGLA Date: 2019.04.08
15:10:30 +0530
RC ARC no.45/16 Bhartiya Baudh Mahasabha vs.Dhan Pal Jain Page 28 of 28