Delhi District Court
Noshirwan Marfatia vs Rajan Baraya Ans on 28 August, 2024
RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
IN THE COURT OF ARC-cum-CCJ-ACJ, SOUTH
DISTRICT COURTS COMPLEX, SAKET, NEW DELHI
PRESIDED BY: PARAS DALAL, DJS
RC ARC No. 6290/2016
[U/Ss. 14(1)(f) DRC Act, 1958]
CNR No. DLST030005702015
Mr. Noshirwan Marfatia
through GPA Holder Dr. Yoteen Cameron
D/o Late Mr. E. A. Marfatia
R/o First Floor, S-185, Pancheel Park,
New Delhi-110017
.........Petitioner
versus
1. Mr. Rajan Baraya (since deceased)
2. Mrs. Roma Baraya
Both R/o Second Floor, S-185, Pancheel Park,
New Delhi-110017
.............Respondents
Date of Institution : 11.08.2015 (Restored on
24.08.2018)
Date of Arguments : 07.08.2024
Date of Pronouncement : 28.08.2024
Pages 1 of 15
RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
JUDGMENT
1. The present petition has been filed by the petitioner seeking eviction of the respondents on grounds as envisaged under Section 14(1)(f) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act, 1958). The petitioner has averred in the petition that suit property i.e. two rooms, one kitchen and one bathroom situated at second floor of property no. S-185, Pancheel Park, New Delhi-110017 (hereinafter to be referred as suit premises) was let out to the respondents by Mrs. K. N. Marfatia, mother of petitioner under lease deed dated 01.10.1982 for two years for residential purposes at the rate of Rs.1,450/ per month. The petitioner stated that Mrs. K. N. Marfatia has since deceased and tenancy was attorned in favour of petitioner in terms of memorandum of family settlement dated 02.12.2002. The petitioner stated that respondents were paying rent uptil June 2012 to the petitioner, however have since defaulted.
2. Petitioner averred that the respondents are habitually defaulting in making the payment towards rent and it is alleged that the entire building i.e. S-185, Panchsheel Park, New Delhi is very old construction, currently is in dilapidated condition and hence unfit for inhabitation. Petitioner infact relied on the letter dated 22.04.2015 written by respondent no.1. Petitioner stated that he deputed one Architect to survey the building and he inspected the same on 05.05.2015 whereafter he submitted the report that urgent repair and renovation of building is required. The petitioner alleged that respondents failed to respond to the notices dated 27.04.2015 and 15.05.2015 of the petitioner asking them to vacate the suit property for repair of the premises and as such the present petition under Section 14(1) (f) of DRC Act was been preferred.
Pages 2 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
3. Notice of the petition was issued on 19.08.2015 and respondent did not file written statement. Respondents were proceeded ex-parte vide Order dated 08.09.2015 and on same date the written statement was filed. The respondents however again defaulted in appearance and application to set-aside the ex-parte Order dated 08.09.2015 was rejected on 20.05.2017. Petitioner examined her attorney as PW1 and petitioner evidence was closed. Since the respondents were ex-parte, final arguments were heard.
4. The Learned Predecessor of this Court vide judgment dated 23.10.2017, rejected the petition on the ground that although petitioner proved that suit property had become unsafe or unfit for human inhabitation, however held that the petitioner failed to prove other pre-requisites under Section 14(1)(f) of DRC Act i.e.the suit property cannot be repaired without the same being vacated.
5. The petitioner challenged this Order successfully in RCT 53 of 2017, wherein the matter was remanded back for deciding the petition afresh on the basis of additional evidence. The liberty was however only given to petitioner to lead additional evidence and since there was no challenge to ex-parte proceedings by the respondents, they could not file any written statement or put their defence to the petitioner's witnesses.
6. Upon remand back of the matter, the petitioner has further examined PW2 and PW3, both being professional architect to strengthen his case.
7. Petitioner examined his power of attorney as PW1. She filed affidavit Ex.PW1/A in her examination in-chief wherein she has reiterated and reaffirmed the contents of petition on oath. She has relied upon the following documents:-
Ex.PW1/1 (OSR) General Power of Attorney of petitioner in favour of Dr. Yoten Pages 3 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
Cameron; Ex.PW1/2A to Ex.PW1/2D photographs; Ex.PW1/3 letter dated 22.04.2015; Ex.PW1/4 and Ex.PW1/5 site plan; Ex.PW1/6 report of Architect;
Ex.PW1/7 legal notice; Ex.PW1/8 postal receipt; Ex.PW1/9 complaint to Deputy Commissioner NDMC; Ex.PW1/10 complaint to SHO PS Malviya Nagar; Ex.PW1/11 notice dated 15.05.2015; Ex.PW1/12 postal receipt; and Ex.PW1/13 tracking report. PW1 was cross examined as Nil.
8. PW2 Sh. Kavas Kapadia tendered his evidence by way of affidavit as Ex.PW2/A and relied on his report dated 28.09.2018 regrading structural condition of property at S-185, Panchsheel Park, New Delhi as Ex.PW2/1 and also identified his signature on his earlier report already Ex.PW1/16 at point 'A'. PW2 was cross examined by the respondent and apart from other general question about engineering, the particular question of the property was answered by PW2 that he did not inspect the second floor of premises in 2018, but voluntarily stated that in 2015 he had inspected second floor. PW2 stated that he did not inspect the ground floor in 2015 as it was locked. PW2 further on being asked about photograph Ex.PW1/2A could not tell as to what stage the canopy could have been repaired but stated that presently it is in very precarious condition. PW2 then stated that he had advised the petitioner to get her portion repaired so that the roof does not fall and further stated that now comprehensive repair is not possible, only a little bit patch work can be done. PW2 was then asked about repair to cantilever and he stated that there are ways to repair the same without evacuating the building, however voluntarily stated that the present building has to be seen as a whole and not in piecemeal. PW2 further stated that area on the second floor cannot be repaired and they are falling apart. He stated that in some places like parapet wall and courtyard parapet have already started to crumble and have even fallen in parts. PW2 continued that courtyard wall can be repaired without evacuating the building, however Pages 4 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
voluntarily stated that it will be piecemeal repair. PW2 then stated that in his second report, the condition of structure have further slightly deteriorated and stated that no other material difference between the two report is present. PW2 stated that he had thoroughly examined the building as far as possible before giving his report. PW2 then stated that petitioner had got some bits of repair in her dining area and in the kitchen when he visited the premises in 2018. PW2 was then confronted with report Ex.PW2/X1 qua report of the MCD Assistant Engineer that premises in question is not imminently dangerous. The witness PW2 was further questioned as to general expert opinion and specific to his report in the present case.
9. PW3 is another expert witness who filed his report Ex.PW3/A about the condition of the demised premises stating that 'during the site inspection he observed that the quality of RCC and reinforcement has deteriorated at number of places and even at some places due to corrosion of reinforcement the concrete has peeled off from number of places'. He further opined in his report that the building is not structurally safe and the roof of the building may collapse/ fell down at any time and therefore had advised that the existing structure shall be demolished and reconstructed. PW3 was cross examined and he answered that he visited the property in the year 2018. PW3 after being confronted with MCD report Ex.PW2/X1 stated that because the first floor roof is also rusting, it is not possible to repair the same. PW3 further stated that his report was on structural aspect of the demised premises and he could not comment on the MCD report. PW3 further stated that report Ex.PW2/X1 was prepared by Junior Engineer, who may not be structural expert. PW3 stated that no test was conducted on the demised premises and explained that when cracks are visible, concrete spelled out and corrosion visible, they do not recommend test. PW3 further stated that Pages 5 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
damage was extensive and ocular in nature qua the demised property and hence testing was not recommended.
10. Arguments advanced by learned counsel for both the petitioner considered and records have ben perused.
11. Respondent side vehemently argued that the petitioner side has during entire trial tried to improved their case and since the cause of action arose in the year 2015, the petitioner side cannot be allowed to take support of any fact arising subsequently. The respondent side argues that there was specific judgment dated 23.10.2017 passed by Ld. Predecessor of this Court that the petitioner side has not fulfilled the conditions of the provision of Section 14(1)
(f) DRC Act. The respondent side also argued that both PW2 and PW3 cannot be relied as expert witness since PW2 admitted being distant relative of the petitioner and PW3 admitted to having been paid without any proof/ receipt, which taints his report. Respondent side also argued that both PW2 and PW3 were confronted with report of the AE, MCD which opined that the building was not imminently dangerous and none had answers to oppose the said report. Respondent side also stated that in the year 2018 itself there are three reports of three experts, all appointed by the petitioner, and none could say that building at the second floor needs to be evacuated to repair the demised premises. Respondent side finally argued the bonafide of the petitioner and argued that petitioner was in possession of other portions of the demised premises and even their no repair work has been carried out.
12. In order to prove that tenant is liable for eviction under Section 14(1)(f) of Delhi Rent Control Act, 1958, the landlord has to prove that - (a) premises has became unsafe or unfit for human habitation; (b) premises is required bonafide Pages 6 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
by the landlord for carrying out repairs; and (c) said repairs cannot be carried out without the premises being vacated. It is settled law that these issues are purely issues of fact and to be decided on the basis of evidence led in the case. The petitioner has three witnesses, however the respondent has none in view of the defence that was struck off.
13. The petitioner relied on her testimony which has not been questioned since no cross examination was conducted dispute opportunity being granted. The petitioner also stated that the entire exercise qua the condition, survey and repairs of the premises commenced on the letter issued by respondent no.1 in the year 2015. In the said letter, the respondent no.1 himself stated that the premises was in dilapidated condition and in need of urgent repairs. The petitioner then wrote a reply that an expert would inspect the premises and also sought eviction of respondents from the premises as same was required for carrying out repairs.
14. The petitioner further called in evidence two witnesses, PW2 and PW3 who are expert witnesses and gave report that the demised premises need repair, however PW3 stated that structurally the demised premises cannot be repaired and had to be demolished and rebuilt. The respondent side confronted both PW2 and PW3 with one report Ex.PW2/X1 that was signed by Assistant Engineer, MCD on the survey report of Junior Engineer, MCD that the property was in need of immediate repairs, however was not imminently dangerous. During the course of arguments, it has been admitted by both the sides that during the period of trial in the present case, the property has further deteriorated where in some more cracks are visible, the concrete has fallen off, at many places the iron structure has been exposed to natural elements causing corrosion and even the parapet wall has fallen.
Pages 7 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
15. The premises being unsafe and unfit for human habitation, has already been established by the pleadings, cross examination and arguments. The report points to the extensive exposure of the structure to the elements of environment and time. The building is admittedly an old structure and the parts are in need of urgent repair. The petitioner side has rightly relied on the letter Ex.PW1/3 which is letter written by respondent no.1 himself on 22.04.2015 claiming that urgent repairs were required and upon failure a portion of wall may collapse which could be even harmful and may be even cause loss of life. As far as first requirement of Section 14(1)(f) DRC Act is considered, same stands satisfactorily proved.
16. The second requirement is bonafide requirement of petitioner to carry out repairs. The said condition is argued by the respondent to not have been satisfied by the petitioner since he failed to carry out necessary repairs even in portion which are in his possession since beginning. From the evidence however, same is not true. PW2 in his cross examination dated 09.10.2019 deposed that petitioner had got some bits of repair in her dining area and in the kitchen on or before the year 2018. The stand of the respondent that the petitioner have not carried any repair in any portion in her custody is not true. The petitioner have carried out repairs in portion of their residence, although the common areas have not yet been fully repaired. The petitioner is best judge of his circumstances and the respondents cannot dictate the petitioner as to how he should use his property. Similarly, the same freedom is to be given to the petitioner in case of repairs. The petitioner is best judge of his finances based on his resources. The respondent/ tenant cannot dictate how and where the repairs are to be done. The petitioner in the present case, is not only resident of first floor but also has sought expert advice of two Engineers, which shows his genuineness. The petitioner has even carried out some repairs and to presume that he would not Pages 8 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
carry out repairs and only wants eviction of respondent would be presumption too many. Petitioner/ landlord is not supposed to carry out some repairs in the other portions of the property to show his bonafide. Naturally, if carrying out repairs, the owner/ occupant would seek comprehensive estimates of repairs to reduce cost. Piecemeal repairs are not only expensive, but may also not be long- lasting and structurally viable. The respondent also has the option of Section 20 DRC Act if the petitioner fails to carry out repairs, however the respondent cannot dictate that petitioner has to carry out some repairs to prove his bonafide. Thus it can be seen that petitioner is genuine in his demand for bonafide requirement of the premises to carry out necessary repairs.
17. The last requirement is the main contentious issue in the present case. Having established the first two requirements, it is to be seen if the premises requires to be vacated to carry out repairs. The respondent has vehemently contested that premises can be repaired while being in possession of parties. PW2 and PW3 are two experts witness called by the petitioner. PW2 inspected the demised premises twice i.e. in the year 2015 and 2018. In 2015, he gave report Ex.PW1/16 and opined that 'main parapet wall on the terrace is leaning out precariously and may fall due to slightest enticement'. As in his cross examination during trial, it was proved that said parapet wall fell after 2015. PW2 also opined in 2015 that floor tiles have become lose, permitting water to pass down to the Reinforced Cement Concrete (RCC) slab below and causing chucks of plaster from under the slab to fall off. The report also states that inner court yard (adjacent to kitchen) has already partly collapsed. Exposed plaster and steel rods have permitted a lot of water to seep through and in the balcony have caused the underside of this RCC slab to similarly be damaged. In 2018, PW2 he gave report that continued seepage has exposed the steel reinforcement which is now visible with naked eye. Similar is the condition of canopy and Pages 9 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
balcony roof. PW2 was cross examined however the said report was not rebutted and nor was it disproved. The damages as stated by PW2 have been established since the parapet wall has fallen and even the plaster at many places have fallen which has exposed the reinforced steel rods. Although PW2 in 2015 said nothing about repairs being carried out without necessity to vacate the premises, however in 2018, PW2 specifically stated that building requires comprehensive and extensive repairs of all the wall, roof and structure which is not possible while it is occupied. PW2 was even confronted with report of MCD, however he stuck by his report and stated that MCD had given its own opinion, although he did not discredit the report of MCD and stated that same could be MCD's opinion. PW2 however, was not cross examined with any material of Engineering science, to say that his opinion or report was contrary to settled principles of Engineering.
18. PW3 is another witness who stated that premises is beyond repair and ought to be demolished and reconstructed. PW3 in his report Ex.PW3/A stated that on site inspection he observed that the quality of RCC and reinforcement has deteriorated at number of places and even at number of places due to corrosion of reinforcement the concrete has peeled off. He further stated that building is not structurally safe and roof of the building may collapse/ fell down at any time. PW3 in his cross examination admitted that his report was work of his experience and ocularly senses. No tests were done, however he clarified that view of the damage seen, as well as visible steel rods having been found corroded, no tests could be done. The said witness was also not confronted with any material to show that PW3's opinion was opposed to settled principles of Engineering.
Pages 10 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
19. PW2 and PW3 in the opinion of this Court has thus established that there report is to be best of their capabilities and nothing contrary in terms of Engineering has been proved in their report. PW2 and PW3 were questioned as to their veracity. This Court finds contradiction in the submission of respondent to question the veracity of the two expert witnesses. Respondent challenged report of PW2 as being not paid and being distant relative of petitioner and he challenged report of PW3 as being paid. PW2 stated that he was only distant relative of petitioner and he did not charge any amount for his services. Respondent questioned PW2 for not charging any fee and PW3 for having charged professional fee. PW3 stated that he was Structural Engineer and was paid for his services. This Court finds no objection in conduct of these two witnesses, especially nothing contrary in their report as to settled Engineering principles has been pointed out. PW2 was also repeatedly questioned as to general knowledge of Engineering and he answered few questions, whereas few could not be answered being general in nature. PW2 in his answers was objective and he even admitted that with structures as in the premises, they can only give opinion to the best of their experience and knowledge, since there can be no specific answers as to life of any building material. PW2's answers to this Courts satisfaction, also established that different elements have different life spans and depending on a lot of factors like initial construction, quality, regular maintenance, etc. can very well increase or decrease the life span of articles used in building.
20. It is true that construction and Engineer is complex and since many materials are used, even their quality and regular maintenance would be key factor in prolonging its life. However, since it is matter of human life and health, its should not be the longest, but the earliest period of expiry of the material which ought to be deciding factor when a structure has become unsafe and unfit Pages 11 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
for human habitation. If therefore two opinions are available as to the life expectancy of the building and its material, the shorter ought to be considered and not the longest. It is also relevant to note that the shortest period would only allow new construction to come up, however a longer period would prolong the inevitable new construction, that too at the risks of safety of inhabitants including the tenant itself. In the present case AE, MCD gave report Ex.PW2/X1 that there was no imminent danger to the premises in question. The said AE however had relied on report of JE, MCD to given the opinion, which has never been proved on record in the present case. AE, MCD has thus admitted that his report Ex.PW2/X1 is hearsay in the sense that he never left his office to inspect the premises in question before signing the report. Nevertheless, the MCD report also states that extensive repairs is needed. As opposed to AE, MCD, PW2 and PW3 themselves visited the property and gave their report, wherein PW2 stated that building is in need of repair after evacuating the same, PW3 however put the property to be beyond repairs and in immediate requirement of demolition. PW2 and PW3 are reports of experts who have visited the property and if relied on any of them, it is established that property requires immediate and extensive repair, if not complete demolition.
21. A closer perusal of the reports would show that floor tiles have become loose helping seepage into the floors, parapet walls having fallen at many places, cement concrete having fallen due to rusted reinforcement and cracks present in walls and RCC columns. The damage is seen in columns, floor, roof, reinforcement steel and cement. Falling cement would thus be dangerous to life and limb and same would come down with uncertainty. Similarly, cracks in column and wall cannot be ordinarily fixed and would require resources and money which also can only be estimated after extensive survey. Finally the reinforcement iron having been exposed to the elements of weather as well as Pages 12 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
visibly rusted is one damage which cannot be ignored any longer and would also require considerable resources as well as money. The same would also require time and sufficient space.
22. It is to be seen that each building is built different and would therefore differ in its life span. However, once a building starts deteriorating at some places, it is only a matter of time that other portions would start perishing. The dilapidation in the premises in question is extensive and to its vital parts, i.e. roof, columns, floor, walls, etc. It is also true that seepage is much more severe inside the walls and floors, than what is visible outside. Respondent side vehemently questioned that PW2 and PW3 in their inspection in the year 2018 did not inspect second floor. However, it is no one's case that second floor of the premises was built subsequently or differently than the rest of the premises. The entire premises in question was built together, and there is nothing on record to show that second floor is in better shape than the rest of the premises.
23. Another question would naturally arise is how long the landlord/ petitioner can be asked to keeping repairing his premises. The landlord/ petitioner is best judge of his resources as already been stated in previous paragraphs. Even if some repair work in the form of geniting, floor proofing, new walls, etc. can be built, it would be necessary to consider the life of such repairs. PW2 and PW3 extensively stated that even if some repairs are done to the premises, same would be piecemeal and when answered specifically of some repairs, they answered that repairing work in the premises cannot be seen in isolation. When it is shown that repairs is required in almost all aspects of the building i.e. walls, floor, columns and roof, then even if repairs are done, the petitioner/ landlord cannot be burdened with such high costs for short duration of time. PW2 and PW3 did ask that repairs can be done, however could have Pages 13 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
easily asked the life of such repairs and also could have asked that repairs could be done with occupation by the inhabitants. PW2 and PW3 were questioned by the respondent, however no effort was made to scientifically cross examination these witnesses as to the life of repairs or of repairs while premises being under occupation.
24. Having considered the extent of repairs to be carried out, the roofs, cantilever, parapet, column and walls would require resources such as scattering, necessary protection for masons as well as occupants and neighbours/ passer- bys, which not only requires space but also requires freehand to the masons to carry out the repairs effectively and timely. Any human intervention or constant presence would not only slow the repairs, but would infact risk human life and safety. The respondent side has not been able to question PW2 and PW3 that all repairs necessitated in the premises in question can be done without humans being evicted from the property.
25. This Court thus finds that not only the premises in question is unfit and unsafe for human cohabitation, but also the premises is bonafidely required by the petitioner to carry out repairs and said repairs cannot be carried out without the respondent vacating the premises.
RELIEF
26. In view of the aforesaid discussion, the petitioner has been able to prove all the ingredients required to prove an eviction petition under Section 14(1)(f) DRC, Act to obtain an order in his favour in respect of suit premises. The petition is therefore allowed.
Pages 14 of 15 RC ARC 6290 of 2016 Noshirwan Marfatia v. Rajan Baraya (since deceased) and Anr.
27. Respondent is hereby directed to hand over the vacant and peacefully (symbolic, if applicable) of the tenanted premises i.e. two rooms, one kitchen and one bathroom situated at second floor of property no. S-185, Panchsheel Park, New Delhi-110017 as shown in the site plan, to the petitioner, on the ground that the same has became unsafe or unfit for human habitation and is required bonafide by the petitioner/ landlord for carrying out repairs which cannot be carried out without the premises being vacated.
28. Ordered accordingly.
Digitally
signed by
PARAS PARAS DALAL
Date:
DALAL 2024.08.28
15:51:52
+0530
Announced in the open Court (PARAS DALAL)
on August 28, 2024 ARC-CCJ-ACJ(South)
Saket Courts/Delhi
Pages 15 of 15