Delhi District Court
Sh.Ajit Kumar S/O Late Sh. Virender ... vs M/S Shriram Rayons on 24 September, 2011
1
IN THE COURT OF Ms. VEENA RANI : ADDITIONAL RENT
CONTROLLER: NEW DELHI DISTRICT : PATIALA HOUSE
COURTS, NEW DELHI
E No:02/2010
Sh.Ajit Kumar S/o late Sh. Virender Kumar,
R/o K10A, Hauz Khas Enclave, New Delhi .....Petitioner
Versus
M/s Shriram Rayons
Flat No:504, Akashdeep Building,
Barakhamba Road, New Delhi .....Respondent
ORDER
1. Vide this order I shall decide the leave to defend application filed by the respondent. Briefly stated the facts for the disposal of above application are as under:
2. The petitionerlandlord has filed the petitionherein seeking eviction of the tenantcompany from the premises bearing Flat No.504, Akashdeep Building, Barakhamba Road, New Delhi on the ground of bonafide use under S.14(1)(e) of the DRC Act, 1952.
3. The petitionerlandlord has averred that vide a lease deed dated 14th April 1969 the premiseherein was let out to the tenantcompany. The petitionerlandlord has also averred that he is a qualifies engineer from E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 2 BITS Pilani and an MBA. He has been a business consultant having an experience of over 35 years in the US, the UK and Scandinavia. In the year 2006 the petitionerlandlord relocated to India in order to take up fulltime consulting assignment in Bangalore which ended in Feb. 2009. After the completion of the said assignment the petitioner who is married and has a family with two children returned to Delhi and is now permanently settled here. The petitioner wants to establish a consulting business and no other office premises or commercial space other than the tenanted premisesherein. It has also been averred that by way of advance planning the petitionherein during his visit to Delhi in July, 2005 had requested the manger of the tenantcompany to vacate the premises as the would be required by the petitioner in future. A letter dated 31st July 2005 was als delivered to Sh. Goswami the manager of the tenantcompany. However, the premises was not vacated.
4. The petitionerlandlord has also averred that his parents and after the demise of his father the mother has been residing at K10A, Hauz Khaz Enclave, New Delhi. When the petitioner came to Delhi he moved into the said accommodation which is a residential property. The said accommodation is occupied by the family of the petitioner and the same is unsuitable for the commercial purposes. There happens to be no other premises available either to the petitioner or his wife for the professional E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 3 purposes. The petitioner wants to set up a consultancy business which would be the sole source of his livelihood. The petitionerherein has also averred that he is registered with the Deputy Commissioner Service Tax, Delhi as 'Business Auxiliary Services' and the premisesherein is ideally suited for the purposes of the petitioner. The tenantedpremises is in proximity to other commercial offices and potential clients. The eviction is therefore sought on the grounds of bonafide requirement.
5. The tenantcompany has filed the application for the leave to defend and has averred that the petitionerlandlord has not come with clean hands and that the petitioner has suppressed the true facts. It has been averred by the tenantrespondent that the house at K10A is a palatial house with two storey measuring 1085 sq. yards. As per the building byelaws the petitioner can carry professional activities from the said premises. It has also been averred that the adjoining house No.K9 is also owned by the petitioner's family. It has also been pointed out that consultancy is not the only source of the petitioner's livelihood as the petitioner is registered with the Deputy Commissioner Service Tax. Such a registration is allowed only when the receipt is more than Rs.10 Lakhs.
6. The tenantcompany has also averred that the petitionerlandlord has not filed any documents with respect to his experience etc. No document has been filed by the petitioner to show that he has any intention to settle in E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 4 Delhi. The respondents have denied the receipt of any letter written by the petitioner in the year 2005. According to the respondents the petitioner has right, title and interest in the property No. K10A Hauz Khaas, New Delhi where he can start business of his choice.
7. In Ragavendra Kumar v. Firm Prem Machinary and Co. (AIR 2000 SC 534) it was held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. In Prativa Devi (Smt.) v. T.V. Krishnan (1996 (5) SCC 353) it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with.
It is also held by Hon'ble High Court of Delhi in Mahendra Trivedi Vs. Jai Prakash Verma, 157 (2009) DLT 690 that.........
"Neither the court nor the tenant can dictate the landlord mode and manner in which he should live or to prescribe him residential standard on their own - In judging his special needs and convenience , certainly landlord would have the choice."
Hence, it is crystal clear from the above said case laws that a tenant could not dictate the landlord to adjust himself without vacating him E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 5 from the premises. Rather the Hon'ble Supreme Court has also settled the law that the landlord is the best Judge of his requirement and has complete freedom to choose the place of his business.
It is held by Hon'ble Supreme Court in Rishi Kumar Govil Vs. Maru Soodan 2007 (1) RLR(Rent) 4051 that .....
"It is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. Landlord is the best Judge of his requirement and courts have no concern to dictate the landlord as to how and in what manner he should live."
Moreover the property bearing No:K10 A, Hauz Khas is concerned, the owner of this property is the mother of the petitioner. The petitioner has also filed the documents in order to show the property being in the name of the mother of the petitioner. Respondent has not filed any documents in contradiction.
Hence in my considered view the defence raised by the respondent that the petitioner can run his consultancy business in the property bearing No:K10 A, Hauz Khas, New Delhi is not a sustainable/triable issues in the eyes of law.
8. ALTERNATIVE ACCOMMODATION AVAILABLE TO E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 6 PETITIONER.
The respondenttenant has also contended that the petitioner is dis entitled from seeking eviction of the present premises on the ground that he and his family own adjoining house No:K9, Hauz Khas and this fact has been concealed/suppressed by the petitioner.
In reply to this contention , the submission of the petitioner is that the house bearing No:K9, Hauz Khas was owned by late Sh. Shankar Prasad and after his demise the said property was sold to Sh. Rajinder Shankar. The petitioner stated that he is not having any legal right over the property bearing No;K9, Hauz Khas, New Delhi. No document as such filed by the respondent in support of this contention. This defence has been raised by the respondent without placing any material on record to substantiate the same.
It has been held by Hon'ble High Court of Delhi in Rajinder Kumar Sharma and Ors Vs. Leelawati & Ors, 155 (2008) DLT, 383 that....
"Leave to defend not to be granted to tenant on basis of false affidavit and false averments and assertions - Only these averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material."
E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 7 Thus in view of the case law, the contention of respondent is rejected as the same is bare allegations without any material to substantiate it.
9. Whether the factors like the business experience and expertise of the petitioner are relevant :
As far as the expertise and the experience of the landlord is concerned it is not for the tenant to look into such aspects and the petitionerlandlord would have freedom to carry on his business. Such a ground is no ground to oppose eviction. The true legal position is that it is not mandatory for the petitionerlandlord to even specify what business he intends to carry. It is held in Balwant Singh Chaudhary Vs. Hindustan Petroleum Corp. Ltd, 2004(1) RCR (Rent), 487 that it is not necessary for the landlord to plead and prove the specific business which he wants to set up.
need of the petitioner is bonafide :
10.Whether the According to S.14 of the DRC Act, 1958 the tenant is protected against eviction and no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenet. However, the eviction of the tenant is provided on one or more of the grounds mentioned. According to S. 14(1)(e) the E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 8 eviction order can be passed if the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof , or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation. The main reason for classification of premises into residential and nonresidential was that by imposing restriction on the eviction of tenants of premises let for nonresidential purposes, the Government wanted to solve the acute problem of housing created due to partition of the country in 1947. As an aftermath of partition many hundredthousands of people had been uprooted from the area which now forms part of Pakistan; that they were forced to leave their homes and abandon their business establishments, industries, occupation and trade and the Government was very much anxious to en sure resettlement of such persons. It was felt that if the landlords are readily allowed to evict the tenants, those who came from West Pakistan will never be able to settle in their life. Therefore, in the 1947 and 1958 Acts, the legislature did not provide for eviction of tenants from the premises let for nonresidential purposes on the ground that the same are required by the landlords for their bona fide use and occupation. As of now a period of almost 50 years has elapsed from the enactment of the E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 9 1958 Act. During this long span of time much water has flown down the Ganges. Those who came from West Pakistan as refugees and even their next generations have settled down in different parts of the country, more particularly in Punjab, Haryana, Delhi and surrounding areas. They are occupying prime positions in political and bureaucratic set up of the Government and have earned huge wealth in different trades, occupation, business and similar ventures. Not only this, the availability of buildings and premises which can be let for nonresidential or commercial purposes has substantially increased.
11. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfillment. 'Need' or 'requirement' qualified by word 'bona fide' or 'genuine' preceding as an adjective is an expression often used in Rent Control Laws. 'Bona fide or genuine need' of the landlord or that the landlord 'genuinely requires' or 'requires bona fide' an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning. Considering Dictionary meanings the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 10 'required bona fide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court.
12. A test has been laid down in AIR 1999 SC 2507 "Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta":
"The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 11 the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord."
"Once the Court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."
13. In "Sarla Ahuja v. United India Insurance Co. Ltd." AIR 1999 SC 100 it has been held"
"The crux of the ground envisaged in clause (e) of Section 14(1) E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 12 of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself."
14. In Institute of Radio Technology and others v. Pandurang Baburao, (AIR (33) 1946 Bombay 212) the relevant words used in the Bombay Rent Restriction Act, 1939 were : "own occupation". It was argued on behalf of the tenant that this meant that the premises must be required by the landlord for his occupation. Repelling the argument it was observed that the words "his own occupation" mean occupation of himself and all persons who are dependent on him. The landlord had E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 13 appeared as a witness in this case and had stated that his family consisted of his son, his widowed sister, her two daughters, two daughters of his daughter and his cousin. The Court was satisfied that those persons were the plaintiff's dependants and therefore, were entitled to live along with him.
15. In Bidhubhusan Sen v. Commissioner, Patna Division and another, (AIR 1955 Patna 496) the Division Bench held that expression "his own occupation" in Section 11(3)(a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 cannot be restricted only to the occupation of the landlord himself but should be given wider and liberal meaning so as to include the occupation of persons who are living with the landlord and are economically dependent on him. In this case the requirement of the landlord for premises to settle his sister's son in business who was living with him was upheld.
16. There has been a definite shift in the Court's approach while interpreting the rent control legislations. An analysis of the judgments of 1950s' to early 1990s' would indicate that in majority of cases the courts heavily leaned in favour of an interpretation which would benefit the tenant Mohinder Kumar and others vs. State of Haryana and another [1985 (4) SCC 221]; Prabhakaran Nair and others vs. State of Tamil Nadu and others (supra), D.C. Bhatia and others vs. Union E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 14 of India and another [1995 (1) SCC 104] and C.N. Rudramurthy vs. K. Barkathulla Khan [1998 (8) SCC 275]. In these and other cases, the Court consistently held that the paramount object of every Rent Control Legislation is to provide safeguards for tenants against exploitation by landlords who seek to take undue advantage of the pressing need for accommodation of a large number of people looking for a house on rent for residence or business in the background of acute scarcity thereof. However, a different trend is clearly discernible in the latter judgments.
17. The concept of residential and nonresidential requirement was analyzed by the Hon'ble Supreme Court in the judgment "Satyawati Sharma v. Union of India" reported in AIR 2008 SC 3148. Consequently it was held that Section 14(1)(e) was violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminated between the premises let for residential and nonresidential purposes when the same was required bona fide by the landlord for 'occupation' for himself or for any member of his family dependent on him. The discriminatory portion of S. 14 (1)(e) was accordingly struck down and the relevant portion now reads :
"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 E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 15 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."
18. The legal position that now stands is that if a landlord can show that he requires the premises for residential/commercial purposes then the eviction orders can be passed against the tenant. In the present case the landlord has cited the reason that he needs the premises for his consultancy business. Once the meaning of 'bonafide need' is stretched to the 'commercial use' then business expansion is covered under the scope of 'bonafide need'. Normally, the rent legislations are meant for the benefit of the tenants but the rent statutes contain exceptions in favour of the landlord which give him a right to evict the tenant, the most important being to ensure that he gets payment of rent regularly and promptly and that in case the tenanted premises is required by him for his personal need, he is able to get its possession from the tenant. So the provision regarding eviction of tenant to meet the personal requirement of the landlord with respect to the premises is a provision for the benefit of the landlord.
19. While interpreting Delhi Rent Control Act, 1958 in Gian Devi's case (1985 (2) SCC 683) the Constitution Bench of the Hon'ble Supreme Court had held :
E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 16 "bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial"
20. After the Satyawati's case the words of statute are "...that the landlord or such person has no other reasonably suitable accommodation." The Honb'ble Delhi High Court in its judgment TAGORE EDUCATION SOCIETY REGD. V. KAMLA TANDON th & ANR. RCR 31/2009 & CM 6929/2009 (decided on 10 July 2009) has after referring to the decision in the Satyawati's case has held :
"26. In view of the aforesaid observations of Supreme Court, in my opinion the ambit of Section 14(1)(e) of DRC Act has been enlarged and a landlord is entitled to an eviction order even with regard to commercial tenancy, if landlord is able to show that he/she requires the premises bona fide for his own or for his family members need irrespective of the fact as to whether the need is for commercial or residential purpose."
21. Accordingly I find no force in the contentions as raised by the respondents. So, in light of the aforesaid observations it is clear that the respondent has failed to raise any issue which, if proved, would disentitle the landlady/petitioner from obtaining an order for recovery of E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons 17 possession of the tenanted premises and, therefore, the application of respondent for leave to defend is dismissed and eviction order is passed in favour of the petitioner and against the respondent in respect the premises bearing Flat No.504, Akashdeep Building, Barakhamba Road, New Delhi, as specifically shown in the site plan, Annexure A. However, in view of Sec.14(7) of DRC Act, this order shall not be executable before the expiry of period of six months from today.
22. File be consigned to Record Room.
(Announced in the open Court
on this 24th day of September, 2011) (VEENA RANI)
ARC, Patiala House courts,
New Delhi
E No:02/2010, Sh.Ajit Kumar Vs. M/s Shriram Rayons