Delhi High Court
Rajender Singh vs P.K. Sukumaran Nair on 10 March, 1997
Equivalent citations: 67(1997)DLT585, 1997(42)DRJ175
JUDGMENT Usha Mehra, J.
(1) Rajinder Singh petitioner herein sought eviction against his tenant of the front portion of the first floor of his property bearing No.D-32, Hauz Khas, New Delhi. Eviction was sought because petitioner needed the premises for his bonafide requirement. The Additional Rent Controller (in short ARC) after examining the case on merits vide the impugned order dated 29th July,1995 dismissed the petition. So far as material facts which are required to be stated under Section 14(1)(e) of the Delhi Rent Control Act (in short the Act) which would entitle him to get an order of eviction are namely (i) ownership of the petitioner (ii) that the premises was let out for residential purpose (iii) The relationship of landlord and tenant between the parties (iv) That petitioner has no reasonable suitable alternative accommodation and finally (v) He needs the premises bonafide. So far as ownership, letting purpose and relationship is concerned these facts stood fully satisfied and accepted by the learned ARC. However, the learned Arc found that the need of the petitioner was not bonafide. He had concealed the factum of allotment of Government accommodation in his favour. Further learned Arc found that the petitioner could keep his family in his ancestral house at Naraina. Hence dismissed the petition.
(2) Aggrieved by that order present revision was preferred. The challenge is primarily based on the ground that the learned Arc failed to appreciate the fact that when the petition was filed Government accommodation had not been allotted to him. Hence he had no alternative accommodation available with him either at the time of filing the petition or when he gave his statement. The learned Arc mixed the facts of this case with the facts of another case pending between the petitioner and his other tenant.
(3) In order to appreciate the contentions raised at the Bar, brief facts of the case must be gone through. That the property in question stood in the name of petitioner's mother. She let out the front portion of this premises to the respondent. It was the case of the petitioner that the plot underneath the house was purchased in the name of petitioner's mother out of the Huf funds. His mother was also member of the HUF. The property was in fact owned by the Huf of Banwari Lal. All the immovable properties belonging to Huf were partitioned on 1st May,1984. After the partition of the Huf, the entire first floor of the property bearing No.D-32, Hauz Khas, New Delhi fell to the share of the petitioner. Properties at Naraina fell in the share of his parents and brothers. Intimation of this partition and falling of this first floor in the share of the petitioner was communicated to the respondent/ tenant. Respondent in turn attorney to the petitioner as his landlord/owner. He thereafter started paying rent regularly to the petitioner. The petitioner being in the service of Crpf was posted as Commandant at Wazirabad, New Delhi. He required a residence for himself and members of his family. Since his own house was not available hence he started living in a tenanted temporary accommodation at Ravinder Rangshala, New Delhi in the 14th Batalian, Crpf alongwith his family. He being in Central Armed Forces had to undergo frequent transfers, therefore, wanted to settle his family at Delhi. His children were getting education at Delhi. He did not like the education of his grown up children to be hampered by frequently taking them with him wherever he was posted. He did not own nor was in occupation of any other reasonably suitable residential accommodation at Delhi. The premises in question was the only residence on which he had a right. The rear portion of this first floor had been in the tenancy of another tenant namely Mr.A.P.Prabhakaran. He was close relative of the respondent herein. That Prabhakaran sub-let, assigned and parted with possession of this portion to the present respondent without the written consent of the petitioner. A petition of eviction against the said Mr.Prabhakaran had also been filed as the petitioner's requirement was of the complete first floor. His family consist of himself, his wife, two daughters and a son. When the petition was filed his eldest daughter was studying in first year of B.A.(Hons.), younger daughter was studying in 11th Class and son was studying in 5th class. His minimum requirement was of four rooms. The accommodation in his occupation was not sufficient to accommodate his entire family.
(4) By the impugned order, the learned Arc accepted that the petitioner was the owner/ landlord of the premises in question. To arrive at this decision, the learned Arc relied on the partition deed exhibit AW-5/5 and the testimony of AW-4, Udc from the House Tax Department. Appearing as AW.4 he proved the mutation of the first floor in favour of the petitioner in the Mcd record. Sales Tax Receipts issued in favour of the petitioner proved on record as Exhibits AW.4/1 to AW.4/4 also lend support to the contention of the petitioner that he became owner of the first floor after the partition of the Huf property. Mutation of the property was done in favour of the petitioner vide mutation letter dated 11th January,1985 Exhibit AW.1/1. The house tax receipts issued by the Corporation in favour of the petitioner are Ex.AW.4/1 to AW.4/4. Notice issued by him to the tenant informing that he become owner of the first floor of the property had been proved as Ex.AW.5/1, postal receipts Exhibit AW.5/2 to AW.5/14. After the said notice, respondent attorney to the petitioner. He paid the rent to him. Counter foils of rent receipts Exhibit AW.3/1 to AW.3/8. The site plan Exhibit AW.5/6. The father of the petitioner Shri Banwari Lal appearing as AW.6 reiterated that the property in question was purchased from ancestral funds. It was Huf property though in the name of his wife. She being member of the Huf hence this property, though purchased in her name, always remained Huf property. This immoveable property being in the pool of Huf properties hence at the time of partition was also put in the hotch potch. After partition the first floor of this house fell to the share of the petitioner. This part of his testimony remained unrebutted and uncontroverted though he was subjected to lengthy cross examination but no material contradiction was extracted. Thus on the basis of the documentary as well as oral evidence placed on record the learned Arc, to my mind, rightly concluded that the petitioner was the owner of the premises in question. While disposing of the objection of the respondent, the learned Arc also took note of the contention of the respondent that under Section 14 of the Hindu Succession Act the immoveable property standing in the name of a woman cannot be blended merged with the Huf property. This contention was rightly negative by the learned Arc thereby concluding that Smt.Kirpa Devi mother of the petitioner was holding this property as member of the Huf and, therefore, provisions of Section 14 of the Hindu Succession Act were not attracted to the facts of this case. Reliance by the respondent on the decision of the Supreme Court in the case of Devi Dass Vs. Mohan Lal, is of no help to him. In that case the Court below had not discussed the objection of the respondent/tenant when it was specifically alleged that purchase of the building was a sham transaction. The Trial Court in that case while granting order of eviction did not give any finding on the objection regarding sham transaction. It was in that circumstance that the Apex Court set aside the order of the Trial Court and remanded the case for being tried afresh. But in the case in hand, the learned Arc not only took note of the objection of the respondent based on Section 14 but found no merit in the same because of oral as well as documentary evidence which had come on record. From the documentary evidence it stood conclusively proved that the property in the hand of petitioner's mother was Huf property. She being member of that Huf holding the property in question for Huf had blended the same with other Huf property, therefore, facts of this case show that this act was not hit by the provision of Section 14. Smt.Kirpa Devi had been holding this property as member of the Huf for the benefit of other members of the HUF. The learned Arc also observed that since Memo of Partition merely contain a recital hence it did not require registration. This property being Huf property stood proved by an assessment order of the Income tax Department. Petitioner's father proved the Huf return filed for the financial year 1st April,1984 to 30th April,1984 as Exhibit AW.3/6. Exhibit AW.3/2 is the information given by him to the Income tax Authorities under Section 171 of the Income Tax Act. Exhibit AW.3/3 is the assessment order and Exhibit Aw, is the order of assessment Commissioner. Exhibit AW.3/5 is the order of Income Tax Appellate Tribunal confirming the order of the Assistant Commissioner declaring the property to be Huf property which was in the hands of Smt.Kirpa Devi. Reasoning given by the learned Arc declaring the petitioner to be the owner after considering all these facts cannot be faulted with nor can be interfered with. Even otherwise respondent has not challenged the ARC's reasoning and decision on this point. He, therefore, cannot be now allowed to urge this point at this stage particularly when he had after being informed of the property in the hand of petitioner attorney to him thereby accepting him to be the owner of this premises. He also started paying rent to the petitioner regularly. Now it does not lie in his mouth to challenge petitioner's status. The decision of the learned Arc on this count cannot be assailed.
(5) Similarly, the observations of the learned Arc that premises was let out for residential purpose was duly proved by the testimony of AW.3 and AW.6. Having proved on record that the petitioner was the owner/landlord, purpose of letting was residential and there existed the relationship of landlord and tenant, we are now left to know whether petitioner concealed the allotment of alternative accommodation by Government and whether his need was bonafide?
(6) The learned Arc found that the need of the petitioner was not bona fide because he had been allotted a Type-IV Government accommodation at R.K.Puram. This fact, according to learned Arc was concealed by the petitioner. Since the petitioner had not come to Court with clean hands hence he was not entitled to the relief. To my mind, this reasoning of the learned Arc are against the record. It cannot be sustained because when the petition for eviction was filed on 18th September,1989, the Government accommodation of Type-IV in R.K.Puram, New Delhi, had not been allotted to the petitioner. Even when he appeared in the witness box on 29th January,1991, the Government accommodation was not in his possession. Therefore, when he filed the petition or made the statement, the petitioner was not having Government accommodation nor aware when the Estate Officer was going to allot him a Government flat. The Government accommodation was allotted to him vide letter dated May,1991 but actual allotment order was issued on 10th July,1991 thereby allotting him a Government quarter at R.K.Puram. Hence it cannot be said that when petitioner filed the petition or made the statement in January,1991, he was having any Government accommodation which he concealed from the Court. To my mind, he came with clean hands when he filed the petition. He did not conceal any fact when he made his deposition in Court on 29th January,1991. Therefore, it cannot be said that he concealed the factum of allotment of Government accommodation at any stage. It would have been a case of concealment had the Government accommodation been already allotted in his favour and he failed to disclose the same. But that is not the case in hand. The petitioner in anticipation of Government allotted accommodation could not have made a mention about the same in his petition nor when he made the statement. In 1989 there was no question of petitioner's mentioning the factum of allotment of Government accommodation, hence there was no question of concealment.
(7) That the Government accommodation in possession of the petitioner consisting of two rooms, besides drawing room, kitchen and bath cannot be called reasonable alternative accommodation. The learned ARC's conclusion that the said Government accommodation was sufficient for him and members of his family, appears to be based on his own surmises and conjectures. Type-IV Government accommodation Mr.Shali rightly contended does not consists of three bed rooms. It is invariably of two bed rooms as opined by Cpwd by issuing certificate in this regard. I see no reason to doubt it. Since I have already observed above that the minimum requirement of the petitioner was of three bed rooms, hence it cannot be said that Government accommodation in possession of the petitioner is sufficient for his needs. Moreover, petitioner's job is transferable. He and his family requires for their residence a permanent place. The Government accommodation on petitioner's getting transferred cannot be called permanent place of residence.
(8) The observation of the learned Arc that house at Naraina was ancestral property of the petitioner and being a member of Huf could go and live there. To my mind, this observation is devoid of sense. It must be stated at the outset that the reasoning given by the learned Arc on the need of petitioner is not only contrary to the settled principles of law but also on facts. It shows non-application of mind. The reasoning given by the learned Arc gives an impression as if he wanted the petitioner and his family to come first on the road and then seek eviction and unless the petitioner/landlord comes on the road he had no right to seek eviction of his house from the tenant. It is settled principle of law that the landlord need not come on the road before seeking eviction. In fact law provides that the landlord when bonafide requires the premises for his needs and the accommodation with him is not sufficient or that he has no other reasonably suitable accommodation, he be given the order of eviction as his need is genuine. He becomes entitled to eviction.
(9) Turning further to the facts which have come on record, we can say that the job of the petitioner being transferable, his grown up children require stability to peruse higher education. All the three of them were studying in Delhi. He wanted them to continue their studies in Delhi so that they could complete their education without being hampered. He could not take them with him wherever transferred. To my mind, the Trial Court fell in error in concluding that such a desire was irrelevant or not genuine.
(10) The view taken by the learned Arc that since all the members of the Huf are living at Naraina at house bearing No.WZ-203, therefore, the petitioner with his family could also go and live there. This reasoning appears to be against the law and facts of the case. After partition of Huf properties petitioner lost all right on the house at Naraina. The house No.WZ-203 at Naraina, New Delhi fell to the share of his parents and brothers. They have been residing in that house. The petitioner as of right cannot go and live in that house. Hence the observation of the learned Arc that the petitioner should live there because other Huf members are residing, even on the face of it this assumption is erroneous. Simply because the petitioner had cordial relations with his parents and brothers does not mean that he can force himself and his family on them. In the absence of having any legal right over the house in Naraina, it cannot be said that the petitioner possessed reasonably suitable alternative accommodation. Even otherwise as explained by Mr.Banwari Lal (AW-6) that in the house at Naraina there is no room for the petitioner and his family to live. That house was fully in occupation of his parents and brothers and their family. This Court in the case of Deepika Arora Vs. S.N.Sehgal, 1995 (1) Rcr 469 had opportunity to consider the bonafide requirement of a landlady. That landlady was living in a joint family at Lucknow. She wanted to shift to Delhi in her own house. Therefore, filed eviction petition. While accepting her bonafide requirement, this Court opined that that was a sufficient ground for ejectment because nobody can insist that the landlady must live with the joint family and should not express her desire to live in her own house. In fact in the circumstances of the present case petitioner landlord has a choice to live in his own house particularly when his is a transferable job and his children are getting higher education in Delhi. The parents would like the children to stay where they could complete their education rather than taking them with him wherever he is transferred. In another case titled as Subhash Jain Vs. Parkash Chand Gupta, this Court while dealing with the requirement of the landlord held the same to be bonafide. In that case the husband of the landlady was Sq.Leader in the Indian Air Force. That landlady filed a petition for eviction on the ground that her husband's post was transferable and she would like to settle down with her children in her house at Delhi so that proper education could be given to the children. This Court while accepting her contention held that neither the Court nor the tenant can dictate to the landlady that she should or should not live in her own house. Since the accommodation at Naraina admittedly cannot be called reasonably suitable alternative accommodation with the petitioner hence in the absence of there being any alternative accommodation being available with him his desire to shift to his own house cannot be called motivated by extraneous consideration in trying to recover the possession from the tenant. This Court in the case of M/s Indian Paper Machinery and Engineering Works Ltd. Vs. Sarwarth Lal Jaini, 1988 (2) All India Rent Control Journal 100 while considering the question of alternative accommodation held that the accommodation of other relations cannot be considered as suitable accommodation of the petitioner landlord nor the rented premises in possession of the landlord can be considered a suitable and reasonable alternative accommodation particularly when in this case Government accommodation had been allotted to the petitioner because of his being posted in Delhi. When he leaves Delhi on transfer his family cannot occupy Government house. In this view of the matter petitioner's desire cannot be but bonafide. So far as the house bearing No.WZ-C/105, Naraina, New Delhi, it is a single story house being used for commercial purpose. It is in possession of a tenant. Moreover, the petitioner as well as his father Shri Banwari Lal categorically stated that there is no space available in house No.WZ-203, Naraina, New Delhi to accommodate the petitioner and his family. This part of the testimony of the petitioner and his father remained unrebutted and uncontroverted on record. Hence the observation of the learned Arc that the petitioner could stay in the house at Naraina being an ancestral property, is contrary to record. Supreme Court in the case of Prativa Devi V. T.V.Krishnan 1987 (2) Rcr 580 while considering the right of a landlady who was living with a family friend held that that accommodation cannot be considered alternative accommodation available to the landlady. The Court has to consider not merely whether such accommodation is available but also whether said landlady has a right over such accommodation. Since she was living with friend, therefore, it was observed that such landlady cannot be disallowed the relief merely on the ground that she was living as a guest with a family friend by force of circumstances. The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the court to dictate him as to how and in what manner he should live or to prescribe for him a residential standard of their own. There is no law which deprives the landlord of the beneficial enjoyment of his property. The observation of the Supreme Court in the Prativa Devi (Supra) aptly apply to the facts of this case. On the proper appreciation of the evidence and in the light of the circumstances explained above particularly of the petitioner happens to be in a transferable job and his children taking education in Delhi, his need being bonafide cannot be doubted. As already observed above there is no question of concealment, therefore, the decision relied by the respondent in the case of Mohd.Usman Vs. Shahzad Begum & ors., is of no help to the respondent.
(11) For the reasons stated above, it can be said that the need of the petitioner is bonafide. Reasoning given by the learned Arc cannot be sustained in view of the circumstances explained above. The impugned order is accordingly set aside. Decree of eviction is hereby passed in favour of petitioner and against the respondent No.1 under Section 14(1)(e) of the Act giving six month's time to the respondent No.1 to vacate the premises and handover the possession.