Delhi District Court
Ms. Kuldeep Kaur vs M/S Rachna Electronics on 9 October, 2019
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No.- 26213/2016
Ms. Kuldeep Kaur
W/o Late Sh. Joginder Singh
R/o GL-18, Hari Nagar, Jail Road,
New Delhi-110064. ...... Petitioner
VERSUS
1. M/s Rachna Electronics
GL-18, Hari Nagar, Jail Road,
New Delhi-110064.
2. Sh. Vijay Kumar Chibbar
Proprietor/Authorised person
(M/s Rachna Electronics)
GL-18, Hari Nagar, Jail Road,
New Delhi-110064.
Also at:
16/8, Tilak Nagar,
New Delhi-110064.
3. Sh. Rajinder Kumar Chibbar
Proprietor/Authorised person
(M/s Rachna Electronics)
GL-18, Hari Nagar, Jail Road,
New Delhi-110064.
Also at:
16/8, Tilak Nagar,
New Delhi-110064. ..... Respondents
Date of Filing : 07.01.2013
Date of Judgment : 09.10.2019
JUDGMENT
1. Present case is a petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') for ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 1 of 23 eviction of the respondents in respect of Shop bearing No. 2 & 3, GL-18, Hari Nagar, Jail Road, New Delhi-110064 as shown in red colour in the site plan attached with the petition (hereinafter referred to as 'tenanted premises').
2. In the present petition, it is inter-alia averred by the petitioner that the petitioner is the owner and landlord of the tenanted premises which was let to the respondent firm by the husband of the petitioner. The husband of the petitioner and all his legal heirs have relinquished their respective rights over the tenanted premises in favour of the petitioner. Presently, it is the petitioner who is owner and landlord of the tenanted premises. That Sh. Vijay Kumar Chibbar and Sh. Rajinder Kumar Chhibbar are in occupancy of the tenanted premises.
It is further averred by the petitioner that the petitioner has four member in her family, i.e. her son, daughter- in- law and two grand children. The son of the petitioner Dr. Jagjit Singh is an Orthopedic Physician and Surgeon by profession and running his clinic at the basement of the premises No. GL-18, Jail Road, Hari Nagr, New Delhi where tenanted premises is situated on the ground floor. Dr. Jagjit Singh being an Orthopedic Physician and Surgeon is visited by many patients everyday and convenience of his patience is his prime concern. Being an orthopedic, most of his patients approach him with the joint and ligament problems and therefore, patients coming to his clinic are generally case of emergency and are not in a position to walk or move properly. Considering the nature of practice of Dr. Jagjit Singh, a clinic at basement is getting inconvenient for his patients. Infact, ground floor presently in occupation of the respondents/tenants is the most ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 2 of 23 ideal and convenient space for providing emergency treatment to the patients. That Dr. Jagjit Singh is also healing his patients by providing treatment through physiotherapy. The patients who are not in a position to walk or move properly have to crawl to the basement of his clinic for getting their physiotherapy done. That the tenanted premises at ground floor are very vital and suitable for the said reasons. That Dr. Jagjit Singh, due to the boast in his practice is now trying to extend the facilities to his patients. Therefore, such an extension in the services of Dr. Jagjit Singh requires lots of space especially in such a location which is convenient for his patients. The vacant shops/ tenanted premises would allow Dr. Jagjit Singh to install physiotherapy machines and Path Lab equipments and providing better services to his emergency and causality patients.
It is further averred by the petitioner that the petitioner and her family need the vacant shops/ tenanted premises for their own bonafide requirements. That the father of Dr. Jagjit Singh/ the husband of the petitioner made the provisions of these shops on the suit property so that the same can be used by his son i.e. Dr. Jagjit Singh for expanding his profession.
Lastly, it is prayed by the petitioner that order for recovery of possession of tenanted premises as shown in red in the plan may be passed in favour of the petitioner and against the respondents and costs of the suit may also be allowed.
3. Notice of the eviction petition was sent to the respondents. In response to which, the respondents filed detailed leave to defend application which was dismissed vide order dated 22.07.2014 and an eviction order was passed against the respondents but thereafter respondents filed ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 3 of 23 revision against the order dated 22.07.2014 before the Hon'ble High Court of Delhi and leave to defend was granted vide order dated 12.05.2016 and respondents were directed to file written statement which was filed by the respondents on 27.05.2016.
4. In the Written Statement, the respondents have inter-alia contended that the total area of the plot in question is 533 square yards whereas the minimum prescribed area for the aforesaid requirement is 1000 to 2000 sq. Meters according to the MPD, 2021. That the respondent is in possession of a single room admeasuring 10-11'x17'. That it is humanly impossible to fulfill all the aforesaid requirement in a single room under the tenancy of the respondents. That the petitioner has brought a fake and false case that the five vacant rooms in the basement are in the use and occupation of Dr. A.V. Singh and Dr. Harpreet Singh. That during the pendency of the eviction petition, the petitioner has acquired entire vacant possession of the entire ground floor portion of the building. That the petitioner has stated that her son Dr. Jagjeet Singh is already running his clinic in the basement in the property in question. Consequently, the petitioner has no bonafide requirement for the additional accommodation too. The tenanted premises was commercial and the same was let out for commercial use from the inception of the tenancy.
It is denied by the respondents that the petitioner is owner of the tenanted premises. However, the relation of landlord and tenants is not denied. It is admitted by the respondents that the tenanted premises was let out by the husband of the petitioner to the father of the respondent no.2 and 3. It is denied by the respondents that the legal heirs of her ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 4 of 23 husband have relinquished their respective rights over the tenanted premises in favour of the petitioner, as alleged as the petitioner has not produced any document in support of the same.
It is admitted by the respondents that the son of the petitioner Dr. Jagjeet Singh is Orthopedic physician and surgeon by profession and he has been running his clinic in the basement of the property in question.
It is further contended by the respondents that in fact, her son is only a visiting doctor in several hospitals viz. Chanan Devi Hospital, Dashmesh Hospital, Jail Road and Vashist Hospital at Tilak Nagar, New Delhi etc. etc. That the petitioner has not stated distinctly indicating in the site plan, the accommodation in use for providing treatment to physiotherapy patients. That the passage leading to the basement is in the form of slopping ramp. That the minimum area for opening a Nursing Home is prescribed as 1000 square meters as per MPD, 2021 but the entire building of the petitioner is existing on an area of 533 square yards.
Lastly, it is prayed by the respondents that present petition may be dismissed with heavy costs.
5. Replication was filed by the petitioner to the written statement of the respondents no. 1 & 2 wherein the petitioner has refuted the stand of the respondents and reaffirmed her orignal stand as well as the petitioner has clarified the stand taken by her. In her replication, the petitioner has reasserted her bonafide requirement of the tenanted premises.
ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 5 of 236. Thereafter, after completion of pleadings, matter was fixed for Petitioner Evidence/P.E and Ms. Kuldeep Kaur/petitioner was examined as PW-1. Petitioner also examined Dr. Jagjit Singh as PW-2, Sh. Praveen Bajaj as PW-3, Dr. Monalisa Borah as PW-4 and Sh. Vinod Kumar as PW-5. All the witnesses were cross examined and thereafter petitioner's evidence was closed.
PW-1 relied upon the documents viz. Sale Deed dated 03.09.1971 Mark-X, Relinquishment Deed Ex. PW-1/3, death certificate Ex. PW-1/4 and rent receipt Ex. PW-1/5.
PW-2 relied upon the documents viz. Photocopy of degree dated 13.04.1996 Ex. PW-2/1 (OSR), photocopy of degree of M.S. dated 24.02.2001 Ex. PW-2/2 (OSR), Photocopy of Registration Certificate issued by the MCI Ex. PW-2/3 (OSR), photoopy of Registration Certificate issued by DMC Ex. PW-2/4 (OSR), Photocopy of certificate issued by Mata Chanan Devi Hospital Ex. PW-2/5 (OSR), 14 photographs Ex. PW-2/6 (Colly.), RTI Reply dated 23.05.2013 received from the DGHS, Govt. of NCT of Delhi Ex. PW-2/7.
PW-3 produced system generated electricity bill Ex. PW- 3/1, billing details of the electricity connection Ex. PW-3/2 and PW-3/3.
PW-4 produced the letter dated 23.05.2013, copy of which has already been exhibited as Ex. PW-2/7.
PW-5 produced the modified Master Plan for Delhi 2021 Ex. PW-5/A. Evidence was also led by the respondents who examined Sh. Vijay Kr. Chhibbar as RW-1. Respondents also examined Mohd. Azimuddin, Assistant Section officer, Delhi Division, Ministry of Housing & Urban Affairs, Nirman Bhawan, New Delhi ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 6 of 23 as RW-2 who produced the Gazette of India Part-2, Section 3, Sub Section-(ii), extraordinary Notification No. S.O. 141(E), dated 07.02.2007 pertaining to MPD-2021 Ex. RW-2/1. Both the witnesses were cross examined at length. Thereafter, Respondent's Evidence was closed and the matter was fixed for final arguments.
7. I have heard the arguments at length advanced by Ld. Counsels for both the parties and also gone through the entire record, written submissions and case law relied upon.
8. It is expedient to reproduce the Section 14 (1)(e) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"That the premises are required bonafide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
As such, followings are the ingredients of Section 14 (1)
(e) of D.R.C. Act:-
(i) There should be a relationship of landlord and ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 7 of 23 tenant between the petitioner and respondent.
(ii) Landlord should be the owner of the tenanted premises.
(iii) That the premises are required bonafide by the landlord for himself/herself or for any member of his/her family dependent upon him/her.
(iv) Landlord/petitioner should not have other reasonably suitable accommodation.
9. Let us discuss the ingredients of Sec. 14(1)(e) of D.R.C. Act:-
(i) & (ii). Landlordship/Ownership:-
10. Perusal of record shows that in the present case, the petitioner has claimed to be landlady and owner of the tenanted premises.
On the other hand, the respondents have although admitted the landlordship of the petitioner, yet they have disputed the ownership of the landlady/petitioner on the ground that the petitioner has not produced any document on record to prove her ownership. The respondents have also contended that relinquishment deed as produced by the petitioner is a fabricated document.
11. I have carefully scrutinized the entire judicial file which shows that the petitioner has placed on record relinquishment deed Ex. PW-1/3 (OSR) executed by her children in favour of petitioner which is a registered document with Sub-Registrar, Delhi. Although, respondents have claimed the relinquishment deed as fabricated document yet he has not given any ground ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 8 of 23 for such belief. Moreover, the respondents have not disclosed in their written statement the name of the owner of the suit property and tenanted premises, if the petitioner is not the owner.
As such, record manifestly shows that the respondents have raised the issue of ownership of the petitioner without any merit. Furthermore, it is well settled that the landlord need not prove her/his ownership in absolute terms. It is sufficient to prove that he/she is something more than the tenant.
In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed: -
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
It is well settled position of the law that for the purposes of Sec. 14(1)(e) of the D.R.C. Act, the petitioner is required to prove his/her ownership also. But it is also well settled that petitioner need not prove his/her ownership in absolute terms. It is sufficient for the petitioner to prove that he/she is something ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 9 of 23 more than the tenant.
In my considered view keeping in view the material on record and well settled proposition of law, the petitioner has been able to prove that she is something more than the respondents.
12. As such, ingredients in respect of landlordship and ownership are satisfied by the petitioner.
(iii) & (iv). Bonafide requirement and alternative accommodation:-
13. It is expedient to discuss some case law on these ingredients which are as under:-
In the case titled as Sarla Ahuja Vs United India Insurance Co. Ltd. AIR 1999 SC 100, the Hon'ble Supreme Court has held that:-
"The crux of the ground envisaged in clause (e) of Section 14(1) 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 in 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 endeavour as to how else the landlord could have adjusted himself."
In Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta AIR 1999 SC 2507, at pg-2512 in para 14 & 15, Hon'ble Supreme Court held that:-
ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 10 of 23"14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non- availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant fact Ors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC
353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
The moral duty of a father/mother to help establish his/her son/daughter was also recognized by the Hon'ble Apex Court in ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 11 of 23 "Joginder Pal Singh Vs. Naval Kishore Behal" [AIR 2002 SC 2256] in the following words:
"24........Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire : (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
14. Perusal of record shows that the petitioner has sought the tenanted premises for the bonafide commercial requirement of her son Dr. Jagjit Singh, who is an Orthopedic Surgeon and running a Poly Clinic in the basement of the suit property wherein the tenanted premises is situated on the ground floor. The case of the petitioner is that her son and his patients are facing a lot of inconvenience as the polyclinic is located at the basement of the suit property and his son wants to use the tenanted premises for further extension of polyclinic so that his patients who generally attend him in emergent circumstances do not face inconvenience and hardship in transit to the polyclinic in the basement.
To the contrary, the issue raised by the respondent is that the total area of the suit property is only 533 square yards ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 12 of 23 whereas the minimum prescribed area for opening a polyclinic/ Nursing Home is 1000 to 2000 square meters as per MPD- 2021.
15. The second main contention of the respondent is that the petitioner and her family members are already having 05 rooms at the basement of suit property.
This court firstly deals with the plea of the respondent i.e. whether a Nursing Home/polyclinic cannot be opened in the tenanted premises as per MPD-2021 as claimed by the respondent.
I have carefully gone through the MPD-2021 (Master Plan of Delhi-2021) which is already on record. It is expedient to reproduce the relevant portion of MPD-2021 which is as under:-
"3.0 DELHI URBAN AREA - 2021 In 2001, about 702 sq km of area was estimated to have been built up, accommodating about 138 lakh population. To accommodate the projected population of 230 lakh by the year 2021, a three-pronged strategy is recommended:
i. To encourage the population to deflect in the NCR towns;
ii. To increase the population holding capacity of the area within existing urban limits through redevelopment; and iii. Extension of the present urban limits to the extent necessary.
3.1 POPULATION HOLDING CAPACITY OF DELHI The area within the existing urbanisable limits of Delhi Urban Area-2001 consists of the planning zones A to H and the Dwarka, Rohini, Narela Sub-city projects.
Population holding capacity of A to H zones is to be enhanced through a redevelopment strategy and modified development norms. This will be related with:
i. Residential development types and their potential for higher absorption.
ii. Redensification of housing areas developed at lower densities and along selected sections of the Metro corridor.ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 13 of 23
iii. Redevelopment areas should be identified by the concerned agencies and Special Redevelopment Schemes should be prepared with regard thereto for implementation within a stipulated time framework. iv. Employment areas / centres v. Augmentation and rationalisation of infrastructure - physical and social.
vi. Increase in transportation network capacity. The holding capacity of Dwarka, Rohini Phase III, IV & V and Narela is proposed to be enhanced through:
i. Early and full utilisation of the planned areas and, ii. Implementation of the schemes under planning stages. Existing residential areas may provide a potential to accommodate about 153 lakh population ultimately i.e. 114 lakh in Zones A to H and 39 lakh in Dwarka, Rohini Phase III, IV & V and Narela.
Table 3.1: Zonewise Estimated Holding Capacity of Existing Urban Area....
3.2.2 HIERARCHY OF URBAN DEVELOPMENT A planned city for an environment of convenience should have a hierarchical cellular structure; with nuclei to contain essential facilities and services at different levels. The pattern of a community module is conceived as residential area containing a 'neighbourhood' with senior secondary school and shopping facilities for day-to-day needs. The higher level of additional facilities is to be provided at Community, District and Zonal / sub-city levels. Such a structure could be maintained in the process of the preparation of plans on the basis of the standards set in the Table 3.3:........
1. 2. 3 4. 5. 6. 7.
3. Community 1. Hospital 2 200015000 400030,000 population 2. Tertiary Health Care Centre 1 10,00015,000 10,00015,000 1,00,000 3. (a). Family welfare Centre 1 500800 each 500800 each (b). Pediatric Centre 1 (c). Geriatric Centre 1 (d). Diagnostic Centre 1
4. Maternity Home 2 1,0002000 2,0004000
5. Nursing Home/Polyclinic 2 1,0002000 2,0004000
6. Dispensary for pet animals and birds...... 1 300 300
16. I have carefully gone through the relevant chapters of MPD-2021. I have also gone through the Chapter-13 and 15 of MPD-2021. It is expedient to reproduce the relevant portion of ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 14 of 23 MPD-2021 which is as under:-
"13.0 SOCIAL INFRASTRUCTURE The quality of life in any urban centre depends upon the availability of and accessibility to quality social infrastructure. Social infrastructure can be looked at in terms of the facilities indicated in the City Level Master Plan, and Community Facilities, which are indicated at the layout plan level in various use zones. Together, these include social infrastructure facilities pertaining to health, education, sports facilities, socio-cultural activities, communications, security and safety, and other community facilities pertaining to recreation, religious activities, social congregations and community events, cremation / burial grounds etc. These are generally planned in terms of population norms with stipulated permissibility conditions and development controls.
13.1 HEALTH The capital city is strategically located and has many specialised health facilities, which serve the city population as well as that of the region, and in many respects the country as a whole. As per available statistics, there are 23 types of health units (facilities) in Delhi. The total numbers of health units are 1914 and the number of beds is 30,667. The existing bed density per thousand population in Delhi works out to only 2.2. The World Health Organization (WHO) has recommended a norm of 5 beds per thousand population. It is estimated that the total number of beds required in the year 2021 will be about 1,15,000. The following broad strategies are proposed in order to meet the requirements of health related infrastructure:
i. Shortfall in the availability of number of beds per 1000 population is proposed to be met througha) ii. Enhancement in FAR for various levels of health facilities;
b) Promoting rebuilding of the existing old hospitals and;
c) Shifting of contagious diseases hospitals from existing urban areas to the proposed urban extension with proper seclusion facilities and connectivity, and using the space thus made available for general hospitals. ii. Essential provisions shall be made for Old Age Home-cum-Care Centres for Senior Citizens and Mentally Challenged by way of specialised / target group oriented facilities, which will also relieve the pressure on general hospitals to some extent.
iii. Premises earmarked for health facilities should also include other medical streams like Ayurvedic / Homeopathic medicine, governed by any statutory code / ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 15 of 23 body. iv. Complementary health facilities at par should be developed in the NCR to reduce burden on Delhi. There shall be following 1[.] health facilities for the city population:
i. 2[Hospitals category:
a) Hospital (category of hospital shall be governed by number of beds, which shall be regulated with respect to maximum permissible FAR and area per bed is 80 sqm.)
b) Tertiary Health Care Centre;
1 Deletedvide S.O. 2893(E) dated 23-09-2013 2 Modifiedvide S.O. 2893(E) dated 23-09-2013 MPD-2021 modified upto 31/03/2017 13.0 Social Infrastructure 13--2
c)] Other health facilities, which include maternity home, nursing home, family welfare centre, polyclinic, paediatrics centre, geriatric centre, diagnostic centre, etc. ii. For health care of animals and pets the following 3 tier of health facilities has been proposed:
a) Veterinary Hospitals for pet / domestic animals and birds shall be provided as per need.
b) Dispensary for pet animals and birds shall be provided in all the zones at Community Level. c) Pet clinic is permitted in all landuse zones except in Recreational use zone.......
15.7 OTHER ACTIVITY 15.7.1 Subject to the general conditions given in para 15.4 and additional conditions given in para 15.7.3, the following public and semi-public activities shall also be permitted in the residential plots abutting roads of minimum ROW prescribed in 15.7.2, whether or not the road is notified as mixed use street:
a. Pre-primary school (including nursery / Montessori school, creche.) b.
i) Nursing home
ii) Clinic, Dispensary, Pathology lab and Diagnostic center.
iii) 1[Wellness Centers including Day Spas / Weight Loss Centres / Ayurvedic Centres offering Ayurvedic treatment / Salons offering fitness & aesthetic medical services and operating as on 7.2.2007.] c. Guest house (including lodging houses) irrespective of number of rooms.
d. Bank......
15.7.3 6[The above mentioned public and semi-public activities shall be subject to the following overriding conditions on the general conditions prescribed in preceding paras:].....
iii) Nursing Homes, dispensaries, clinics, 1[Wellness Centres including Day Spas/ Weight Loss Centers/ ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 16 of 23 Ayurvedic Centres offering Ayurvedic treatment/ Salons offering fitness & aesthetic medical services,] 2[Multidisciplinary Clinics for persons with Learning Disabilities (facilities for care of the elderly and disabled shall be permissible under this category)] and pathology labs shall be permissible: on minimum plot size of 100 sqm in regular plotted development on 13.5 m ROW in C & D colonies and 9 m ROW in E, F & G colonies.
3[However, the minimum plot size size shall be 50 sqm for clinics, dispensaries and pathology labs shall be permissible: on minimum plot size of 100 sqm in regular plotted development on 13.5 m ROW in C & D colonies and 9 m ROW in E, F & G colonies.] However, the minimum plot size shall be 50 sqm for clinics, dispensaries and pathology labs running in these colonies and also in E, F and G category colonies. In Walled City, Walled city extension, villages and unauthorized- regularized colonies, conditions of plot size and minimum ROW shall not be applicable.]
iv) Nursing Homes, 4[Wellness Centres including Day Spas / Weight Loss Centres/Ayurvedic Centres offering Ayurvedic treatment / Salons offering fitness & aesthetic medical services] operating in plots abutting Master Plan roads and Zonal Plan roads shall be permissible up to 100% of built up area and the limit on the size of the plot would not apply......
15.8 PROFESSIONAL ACTIVITY Subject to the general terms and conditions specified in para 15.4, professional activityis permissible in plotted development and group housing under the following specificconditions:
(i) Professional activities shall mean those activities involving services based on professional skills namely Doctor, Lawyer, Architect, and Chartered Accountant, Company secretary, Cost and Works Accountant, Engineer, Town Planner, Media professionals and Documentary Film maker, Management Professionals* 3[and Dietician/ Nutritionists.].....
17. I have carefully gone through the MPD-2021 and I have also heard the arguments at length advanced by Ld. Counsels for both the parties.
Perusal of MPD-2021 clearly shows that Nursing Home can be run even in less than 1000 square meters and there is no embargo on that point. Moreover, even if it assumed for the ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 17 of 23 sake of arguments that the petitioner cannot open a Nursing Home in the tenanted premises, in my considered view, it is devoid of any merit in view of well settled proposition of law laid down by Hon'ble Apex Court wherein it is held that the petitioner is not bound to start the same business as mentioned in the petition U/Sec. 14(1)(e) of the D.R.C. Act. The petition can change it according to his/her needs and circumstances. Moreover, it is a matter of common knowledge that there is an extreme paucity of space in Delhi and due to which most of the Nursing Homes/ Polyclinics/ doctors' clinics and even the hospitals are constructed on the land less than 1000 square meters. It is also the matter of the common knowledge that most of such nursing homes are situated on the land which is having the area of even less than 100 meters. Moreover, even if it is constructed by the petitioner by the contravention of law and rules, the respondent always has the opportunity as well as right to approach the authority concerned for redressal of such grievance. Moreover, the intention of the petitioner is to extend the Nursing Home/ Polyclinic which is already being run in the basement of the suit property and the son of the petitioner wants to use the tenanted premises for the purposes of using it so that the patients of the son of the petitioner may not have to face the hardship in transit to the basement where the polyclinic is located. It is also on record and an undisputed fact that the tenanted premises is situated on the ground floor whereas the polyclinic is already being run by the son of the petitioner at the basement. It is also undisputed fact that son of the petitioner Dr. Jagjit Singh is an Orthopedic Surgeon who is running a Polyclinic in the basement from the suit property.
I have gone through the testimonies of all the witnesses ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 18 of 23 including RW-1/ respondent No. 2 Sh. Vijay Chhibar, who himself has admitted during the cross examination that Dr. Jagjit Singh performs the surgery by attending the other hospitals.
As such, such admission manifestly shows that the son of the petitioner is in dire need of accommodation for the patients who are suffering from ortho problems.
18. In view of observations made by Hon'ble Supreme Court; it is well settled that a person is not supposed to remain unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the son of the petitioner wants to extend his noble profession. Rather, the said requirement seems to be bonafide as he wants to earn his livelihood and wants to serve the people who are in dire need of such treatment in emergent circumstances. Even otherwise, the tenant cannot stop the landlord or her son from having better medical facilities for such patients. The bonafide requirement of a landlord or her son does not become malafide just because son of the petitioner wants to have better medical facilities for his patients at his own property. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. In my considered view, it is a right of every citizen and doctor to have better medical facilities at the clinic of the doctor and if the doctor wants to provide it, there is no harm in it and it would fulfill the cause of justice.
Moreover, it is a matter of common knowledge that one person visits only when he is unwell. Generally, a healthy person is not supposed to visit a doctor's clinic/Nursing Home and the patient wants the convenience to the maximum extent ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 19 of 23 possible. Moreover, when patient suffers any sort of illness or injury, a single step becomes a mountain. Besides, in the present case, son of the petitioner is an Orthopedic Surgeon and not a General Practitioner. Patients having the arthritis or accidents faced patients are supposed to visit the Orthopedic Surgeon and the people who are already suffering from such injuries and diseases are already unable to even walk and they cannot be asked to go to the first floor or the basement. Even basement is not as convenient as ground floor. Even, when such clinic is opened in the basement, same kind of great inconvenience and hardship are supposed to be faced by such patients, who are already facing such physical hardship. Moreover, this is the era of competition. Everyone wants maximum extent of convenience and comfort. A patient opts for such doctor as is easily accessible and provides the maximum extent of comfort and convenience in addition to the proper and immediate treatment. Patients in such a Metropolitan like Delhi always has option to avoid such an inconvenient clinics/Nursing Home. A doctor or owner of the Nursing Home/clinic is not supposed to stagnate his growth financial as well as in career merely to save the tenancy of a tenant. Everyone has a right to excel in his/her life and career.
19. The second contention of the respondent is that the petitioner is having five rooms at the basement of the suit property.
On the other hand, the petitioner has claimed that the aforesaid space is already occupied and the polyclinic is being run from the basement.
Perusal of record shows that it is undisputed fact that ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 20 of 23 polyclinic is being run from the basement of the suit property and material on record clearly shows that it is already occupied and being used commercially.
As far as ground floor is concerned, it is already occupied by the family members of the petitioner and is being used for residential purposes.
20. Perusal of record shows that the respondent has claimed that the petitioner is having alternative accommodation in her possession.
On the other hand, the petitioner has refuted the allegation stating that she is not having alternative reasonably suitable commercial accommodation.
It is well settled proposition of law that it is not sufficient that any kind of the property should be available to the petitioner/landlord to rule out the benefit of 14(1)(e) of D.R.C. Act. The property available with the petitioner/landlord should also be reasonably suitable property. If the petitioner/landlord has filed the eviction petition for commercial bonafide requirement but the property available with the petitioner is residential one, it cannot be said that the petitioner is having the alternative reasonably suitable commercial accommodation.
It is well settled whether the property available with the petitioner is convenient and suitable or not is to be determined from the point of view of the petitioner/landlord and not from the point of view of the tenant/respondent. The respondent/tenant cannot dictate the terms to the petitioner to use the property in the particular manner. The petitioner/landlord is the best judge of his requirement.
ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 21 of 23As such in my view, the petitioner is not having the alternative reasonably suitable accommodation with her. Moreover, the respondents have not been able to prove on record that the petitioner is having alternative reasonably suitable commercial accommodation for which the present eviction petition has been filed.
In my considered view, everyone has a right, as well as duty to work for himself/herself and for the family members dependent on them. It is well settled proposition of law as held in catena of judgments of Hon'ble superior courts that bonafide requirement of a person does not become malafide merely because he/she is already working. As far as dependency of the son of the petitioner is concerned, the children of a person are always dependent upon their parents. Moreover, in my view, everyone has a right to excel in his/her life. A person is not supposed to be stagnated in the same position and status in the entire life, otherwise there will be monotony in the life.
As such, in view of the settled proposition of law, all these contentions of the respondent do not have any merits.
21. Keeping in view the material on record, the respondent has not been able to prove that the petitioner is having alternative reasonably suitable accommodation where he can satisfy the bonafide need of commercial space as required for the purposes of removing the hardship of patients in transit.
In my considered view, landlord is the best judge of his requirement and the tenant cannot dictate the terms to the petitioner to use a particular property or space to satisfy their bonafide needs merely to protect the tenancy of a tenant.
As such, all the contentions as raised by the respondent ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 22 of 23 do not have any substance.
22. As such, these two ingredients in respect of bonafide requirement and non-availability of alternative reasonably suitable accommodation are also satisfied.
CONCLUSION:-
23. Keeping in view all the facts and circumstances of the present case, material on record, settled proposition of law and the reasons as discussed earlier, I am of the considered view that the petitioner has proved all the ingredients of Sec. 14(1)(e) of D.R.C. Act. Consequently, the present eviction petition is allowed and an eviction order is passed in favour of petitioner and against the respondent in respect of Shop bearing No. 2 & 3, GL-18, Hari Nagar, Jail Road, New Delhi-110064 as shown in red colour in the site plan already exhibited as Ex. P-1 attached with the petition.
24. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
25. File be consigned to Record Room after due compliance.
Announced in the open Court Digitally signed
on 9th October, 2019 AJAY by AJAY NAGAR
Date:
NAGAR 2019.10.09
17:02:00 +0530
(This judgment contains 23 pages)
(Ajay Nagar)
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 26213/2016 Ms. Kuldeep Kaur Vs M/s Rachna Electronics & Ors. Page 23 of 23