Delhi District Court
Mrs. Usha Bhatia vs The Amritsar Transport Company (Pvt.) ... on 23 July, 2018
In the Court of CCJ cum ARC, Pilot Court (Central District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Susheel Bala Dagar
Case No. E295/17
U. ID No. 343/17
In the matter of :
Mrs. Usha Bhatia
W/o Shri Vijay Kumar Bhatia
R/o 5UA, 1st Floor,
Jawahar Nagar, Delhi110007. ...........Petitioner
Versus
The Amritsar Transport Company (Pvt.) Ltd.
Now known as ATC Logistical Solutions Pvt. Ltd.
Through its Principal Officer/ President,
Corp. Office : C200, 2nd floor,
Naraina Industrial Area, PhaseI,
New Delhi110028. ..........Respondent
Date of institution : 29.04.2017 Date of reserved for judgment : 17.07.2018 Date of judgment : 23.07.2018 Decision : Petition Allowed JUDGMENT :
1. An eviction petition has been filed by the petitioner Mrs. Usha Bhatia against the respondent i.e. the Amritsar Transport Company (Pvt.) Ltd. (now know as ATC Logistical Solutions Pvt. Ltd. through its E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 1 of 22 Principal Officer/ President) for vacation of the tenanted premises, i.e., One hall with bathroom on the ground floor of property no. 5UA, Jawahar Nagar, Delhi110007 as shown in red colour of the site plan annexed with the petition, on the ground of bonafide requirement under Section 14 (1) (e) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').
2. The case of the petitioner is that the premises is required by her for bonafide need as she is unable to reach on first floor without undue hardship as well as for bonafide need of his son, who is also coowner of the premises in question alongwith the petitioner by succession. The husband of the petitioner was owner of the premises as the said property came to his share and order to that effect was made by the Hon'ble Delhi High Court vide order dated 11.01.2002 on the statement of all the then coowners/brothers, all sons of Late Sh. Ganga Prasad Bhatia, who was residing in the same house, i.e. 5 UA, Jawahar Nagar. The copy of the judgment and order based on compromise, arrived between all the three brothers is being filed as Annexure2. The petitioner and her family with his son, Prayas Bhatia are residing at the first floor. The Election I Cards are being filed as Annexure3 & 4.
3. The petitioner needs the premises under tenancy for her residence, being senior citizen, unable to use stair case as well as for self employment by his son Prayas Bhatia for doing some job that can be done at ground floor as per Municipal laws. In addition to that, the son of the petitioner is doing business of supply of general goods in the market E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 2 of 22 after purchasing the same from market on the orders taken from prospective buyers, thereby requires the space at the ground floor for storage of the purchased goods time to time. The petitioner's daughter, Monica is married and residing at Gurgaon. She comes with her family at least once in a month, thereby space is required to accommodate her in the house as space on first floor is not sufficient to accommodate her. Further, the brother, sister, father and mother of the petitioner also visit the petitioner and therefore, space is also required by the petitioner to accommodate them.
On the above stated grounds, prayer is made for eviction of the respondent from the tenanted premises.
4. Summons were served upon the respondent, who appeared and filed leave to defend application, which was allowed vide order dated 30.08.2017 and the respondent was granted leave to contest the present eviction petition. Thereafter, written statement was filed by the respondent denying the contentions made by the petitioner in the eviction petition stating that the present reply is being filed by M.S. Tanwar, General ManagerOperations of ATC Logistical Solutions Pvt. Ltd previously known as The Amritsar Transport Co. Pvt. Ltd duly authorized by the Board Resolution passed by the Directors of the respondent company. Copy of Resolution passed by the Board of Directors, dated 01.05.1999 is annexed as Annexure R1. The premise in question which has been let out to respondent is non residential/ commercial in nature. The respondent is an old occupant of the tenanted premise in question E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 3 of 22 which was given on rent a long time ago by the husband of the respondent.
5. It is submitted that the premises in question is a hall measuring 1650 sq. feet situated on the ground floor of the property being used as a godown by the respondent company for their business purpose. The respondent was regularly paying rent/ increased rent as per law to the husband of the petitioner and now to the petitioner. The respondent strongly denies the bonafide need as stated by the petitioner. It is alleged that the alleged requirements raised by her are just an eye wash and to accommodate high payer tenant. The petitioner's son has no intention to start any business from rented premise. The present petition is not maintainable against The Amritsar Transport Company Private Limited because the name of The Amritsar Transport Company Private Limited has been changed to ATC Logistical Solutions Private Limited with effect from 27.07.2016. The copy of certificate of incorporation pursuant to the change of name issued by the Registrar of Companies is annexed herewith as Annexure R2.
6. The petitioner has not filed any documentary proof to show that she is the owner of the property bearing no. 5UA, 1st Floor, Jawahar Nagar, Delhi110007. The present petition has not been filed, signed and verified by the competent person. The petitioner herein has herself admitted that there are other co owners of the property in question. The petitioner has reasonable, suitable, appropriate alternative and more than sufficient accommodation for her or her family's need which she has E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 4 of 22 concealed. The petitioner is having two more shops available on the ground floor of the suit premise, which are on the front side in front of road available to start business for her son, if needed. The photographs of the shops are annexed as Annexure R. The petitioner is having two more shops at K18A, Kalkaji, New Delhi from where the son of the petitioner is running bakery business for the last 12 or more years in the name and style of M/s Super Bakes since 2004 which has been admitted by the petitioner's husband in the previous eviction petition filed by him. She is having another property at C16, Local Shopping CentreI, Paschimi Marg, Vasant Vihar, New Delhi. The photographs of the shops are annexed as Annexure R.
7. The petitioner is making contradictory statement by stating that space available with her is required for running business for her son and she again says that she is old lady and unable to use stair case. It is further stated that petitioner's married daughter and petitioner's parents and sisters are on visiting terms and used to stay with her. This fact is totally incorrect. It is submitted that the heading of legal notice is "Termination of your tenancy which is required by my client for her bonafide need to self employ her son". In the entire notice, the petitioner is stressing on the need to pay enhanced rent to the petitioner. The intention of the petitioner is not clear towards her bonafide requirement. Hence, it is submitted that the main intention of the petitioner is to increase rent.
8. The respondent company has no other place in that particular area to use it for godown. The business of respondent company and several E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 5 of 22 employees working with respondent company will be affected if the eviction order is passed against the respondent.
9. The petitioner has more than sufficient accommodation available with her to accommodate her family members who are not residing permanently at the tenanted building. Monica, daughter of the petitioner is not a permanent member of the petitioner's family. She is having cordial relationship with her in laws and husband. She is only on the visiting terms with the petitioner/ mother. Even the sister of the petitioner Nilam Mahendru is a local of Kalkaji, Delhi. She is also on the visiting terms with the petitioner as she is having her own responsibility. Further brothers of petitioner are rarely visiting the petitioner's house since they are not the permanent residents of Delhi.
10. It is denied that the son of the petitioner is doing business of supply of general goods in the market after purchasing the same from market on the orders taken from prospective buyers. It is denied that he requires the space at the ground floor for storage of purchased goods time to time. The story of this business is totally unbelievable as he is running his confectionery/ bakery business from Kalkaji for the last 12 or more years. Godown, as used by the respondent, is not suitable for residential purpose. Even the petitioner is alleging to use it for storage purpose. It is denied that brothers of the petitioner, who are well settled in Chandigarh used to visit Delhi with their families at least 45 times in a year and reside about one week on each visit. It is denied for want of knowledge that they are having no place in Delhi to stay. The petitioner has not E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 6 of 22 stated how many members of her brother's family visit the home in Delhi. The petitioner has no where stated when did her brother visit Delhi last time and what she has done with present accommodation. The legal notice dated 23.04.2016 sent by the petitioner has been duly replied by the respondent.
11. Replication to the written statement of the respondent was filed by the petitioner, wherein the petitioner has denied all the averments made by the respondent in their written statement, reaverring what was averred by her in the original eviction petition. It is submitted that Shri M.S. Tanwar S/o Shri Matu Singh is not competent to file Written Statement. on behalf of Amritsar Transport Company Pvt. Ltd now known as ATC Logistical Solutions Pvt. Ltd. The respondent did not intimate w.r.t. change of the name of it's company. Even no permission was sought from the petitioner to treat the ATC Logistical Solutions Pvt. Ltd as tenant even after service of the legal notice dated 23.04.2016 and also did not pay the rent by the cheques issued by said new company after change of name since 27.07.2016. The memo of parties is filed to take on record the aforesaid changed new company i.e. ATC Logistical Solutions Pvt. Ltd.
12. The husband of the petitioner has died on 15.05.2014. The premises has been transferred in the name of petitioner under succession and the same is not owned as purchaser from any 3 rd party under consideration as Sale - Purchase transaction. It is submitted that even the coowner may file the eviction petition. The premises in question is only the accommodation, which is required by the petitioner to fulfill her E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 7 of 22 bonafide needs and her son as well as other family members. The respondent is not paying rent since 31.03.2016 regularly which is admitted by respondent itself. The petitioner is an old lady and is under hardships to reach 1st floor in addition to other bonafide needs of premises under tenancy. The Medical record has been produced. The presence of her son at the nearest distance is the need of petitioner. It is further denied that K18A, Kalkaji, is being used for business of the son of the petitioner. It is submitted that there is no contradiction in the version of the petitioner as the petitioner as well as her son need the premises in question for their bonafide needs. The work of the son of the petitioner is an additional need for storage of the goods for supply in the market and there is additional need of the petitioner to use the ground floor for her stay at ground floor to avoid hardship to her in going to 1st floor.
13. The termination of the tenancy has been rightly communicated by serving the notice to the respondent. The old occupancy cannot entitle the respondent to occupy the premises against hardships of the petitioner and the needs in her old age as well as needs of her son. The daughter of the petitioner and other family members due to expansion in the family need space. Thereby whenever they visit, the ground floor is required for accommodating them in addition to the needs already stated. The daughter Monica, whenever visits has right to stay conveniently with petitioner and her brother that cannot be compromised at the costs of respondent. The properties indicated by the respondent are far away at a distance of about 2025 km from residence of the petitioner and the same E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 8 of 22 cannot fulfill the bonafide needs of the petitioner. The tenant cannot be allowed to account for the days of stay of daughter of petitioner with her. The property can be used for residential or commercial purpose both. There is no bar for using the same for residential purpose.
14. During evidence, petitioner Mrs Usha Bhatia, stepped into the witness box as PW1 and deposed on the lines of the eviction petition. Further, she relied upon the following documents : a) Site plan : Ex.PW1/1
b) Compromise statement before Hon'ble High Court : Ex. PW1/2
c) Election I Cards of petitioner and her son : Ex. PW1/3 and Ex. PW1/4
d) Legal Notice dated 23.04.2016 and reply : Ex. PW1/5 and Ex. PW1/6
e) The prescription of doctors & various tests/ investigation : Ex. PW1/7 to Ex. PW1/25
15. In its turn, the respondent through Sh. M.S. Tanwar entered into the witness box as RW1 and deposed on the lines of the written statement. Further, he relied upon the following documents :
a) Copy of resolution passed by the Board of Directors dated dated 01.05.1999 : Ex. RW1/1
b) Copy of certificate of incorporation pursuant to the change of name : Ex. RW1/2 deexhibited and issued by registrar of companies Marked as Mark RW1/1
c) The photographs of the shops at ground floor of the suit property : Ex. RW1/3 and Ex. RW1/4
d) The photographs of the shops at Vasant Vihar New Delhi : Ex. RW1/5 and Ex. RW1/6
16. I have heard the contentions of both the parties and have gone through the record.
17. Ld. Counsel for the petitioner has relied upon the following case laws : Pushkar Singh v. Anusuiya VI (2006) SLT 379, Om Prakash v. Dev Raj Kohli 67 (1997) DLT 721, O.P. Soni v. Om Kumar 60 (1995) DLT 30 and Mumtaz Begum v. Mohd. Khan in RCR No. 7879/2005 in support of his arguments.
Essential ingredients of Section 14(1)(e) of DRC Act, 1958. i. Petitioner is the owners/landlords in respect of the tenanted E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 9 of 22 premises;
ii. She require the premises bonafidely for herself or for family members dependent upon her;
iii. She have no other reasonable suitable accommodation. Ownership and existence of landlord tenant relationship.
18. In the present case the respondent has not challenged the existence of landlord tenant relationship between the parties and has admitted that the respondent company was regularly paying the rent to the husband of the petitioner. However, as regards the ownership, it has been stated that the petitioner has not filed any documentary proof that she is the owner / coowner of the property in question. It is submitted that there are other coowners and the petitioner has not filed NOC from the other coowners of the suit property.
19. On the other hand the petitioner has stated that she is the owner of the premises in question as partition of the said property was affected under the compromise between the deceased husband of the petitioner and his brothers in suit no. 1565/1999 dated 11.01.2002 titled as Vijay Bhatia v. Ajay Kumar Bhatia. The copy of the same is Ex. PW1/2. She is one of the LRs of her deceased husband and hence a coowner. It is submitted that even otherwise, the respondent has admitted paying rent to the petitioner admitting her as the owner of the premises in question. In these circumstances as respondent is admittedly making payment of rent to the petitioner is estopped under Section 116 Evidence Act from challenging the title of the petitioner. Moreover, in Yashpal v. Chamanlal Sachdeva, 129 (2006) DLT 200, it has been held that "Co E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 10 of 22 owner can maintain a petition and that the intersearrangement between owners is no business of the tenant." No objection has been raised by son of the petitioner against filing of the present eviction petition by the petitioner. There is no specific requirement of any NOC from the other coowners. In Kanta Goel v. B.P. Pathak (1977) 2 SCC 814; Pal Singh v. Sunder Singh (1989) 1 SCC 444; Dhannalal v. Kalawatibai (2002) 6 SCC 16; Indian Umbrella Manufacturing Co. v. Bhagabandei Agarwalla (2004) 3 SCC 178; and, Mohinder Prasad Jain v. Manohar Lal Jain (2006) 2SCC 724 it is held that the landlord, even if not the absolute owner, is at least one of the coowners, is entitled to maintain a petition under Section 14(1)(e) of the Act. Thus, the ownership of the petitioner over the premises in question for the purpose of the DRC Act as well as existence of landlordtenant relationship between the parties stands duly proved.
20. The next contention of the respondent is that the petitioner has failed to disclose and file site plan of the available space to show how the space available is in sufficient to accommodate relatives who are occasional visitors. There is no description how much accommodation available with the petitioner on the first floor and the petitioner has not filed the site plan of the entire property. Perusal of record shows that the site plan relied by petitioner is Ex. PW1/1. During cross examination one site plan Ex. RW1/P1 has been put to the respondent where RW1 has admitted the site plan Ex. RW1/P1 as correct as per site in existence stating the portion A, B, C and D is under the tenancy of the respondent.
E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 11 of 22In the case of Om Prakash v. Dev Raj Kohli (supra), it has been held that if the landlord while submitting the site plan of the premises in his possession omitted to furnish the plan of the second floor in his possession because the same was not been used for residence, by non furnishing of the plan of the second floor, the landlord did not come it any illegality. Moreover, during crossexamination PW1 has categorically stated that she is having only three rooms on the first floor. The respondent has failed to file any site plan showing any more rooms available with the petitioner on the first floor. Thus, the site plan filed by the petitioner is duly proved.
Bonafide requirement.
21. In the present case, the petitioner has stated that the premises in question is required for her bonafide need as she is unable to reach on the first floor where she is presently residing with her son without undue hardship as well as the premises under tenancy is also required for the business requirement of her son Prayas Bhatia. The premises under tenancy is on the ground floor which is just below the residence of the petitioner at the first floor, thereby the same is most suitable for petitioner to satisfy the bonafide need of herself and her son.
22. It is submitted that the first floor is not sufficient as per the standard life of the petitioner and the ground floor is only suitable in old age due to various old age ailments. It is further stated that the son of the petitioner in addition is doing business of supply of general goods in the market after purchasing the same on orders taken from prospective buyers E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 12 of 22 and thereby he requires the space at the ground floor for storage of the purchased goods from time to time. Petitioner further states that her daughter namely Ms. Monica who is married and residing in Gurgaon used to come with her family at least once a month and thereby the space is required to accommodate her in the house as the space on the first floor is not sufficient. Also, the brothers of the petitioner who are residing in Chandigarh used to visit Delhi with their families at least 45 times in a year and reside for about a week on each visit as they do not have any other place in Delhi. Hence, the living space is required to accommodate them from time to time as they also have to stay on the ground floor in their old age. Further it is averred that the father and mother of the petitioner are very old and they also visit at least once in a year and requires accommodation at ground floor as they cannot reach the first floor by stairs. They also bring their car which is required to be parked safely on the ground floor. Further more, it is submitted that the sister of the petitioner namely Nilam Mahendru reside at Kalkaji and also visit the petitioner with her family/ children on several occasions and space is needed to accommodate them.
23. Per contra RW1 has stated that the son of the petitioner has no intention to start any business from the tenanted premises. The petitioner has concealed the alternate accommodation available with her. The son of the petitioner is already carrying business from K18A, Kalkaji, New Delhi for the last 12 years. The petitioner is making contradictory statement regarding her bonafide requirement. On the one hand she has E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 13 of 22 stated that she is old and unable to use the stairs. On the other hand, she is contradicting herself stating that accommodation is required for married daughter, her parents, brothers and sisters who are on visiting terms and used to stay with her. Further more she is stating that she requires the premises bonafide to self employ her son. It is stated that petitioner is not clear towards her bonafide requirement. The petitioner has failed to state what type of business her son wishes to start in the tenanted premises. It is submitted that premises in question is being used as godown by the respondent company i.e. it is for non residential / commercial use. The daughter of the petitioner is not permanent members of the petitioner family. She is having cordial relation with in laws and husband. The sister of the petitioner is local of Kalkaji. Both of them are on visiting with the petitioner. The brothers of the petitioner rarely visit the petitioner house as they are not permanent resident of Delhi. The son of the petitioner is already running his confectionery / bakery business from Kalkaji. The petitioner has not told how many days her daughter stays with her. Further it is stated that the godown as used by the respondent is not suitable for residential purpose, even the petitioner is alleging to use it for storage purposes. The petitioner has not disclosed when her brothers last visited her and how many members of the family of the brothers of the petitioner.
24. In support of her submissions regarding the bonafide requirement, the petitioner has placed on record her medical documents i.e. prescriptions of doctors and various tests and investigations as Ex. PW E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 14 of 22 1/7 to Ex. PW1/25. The petitioner is about 65 years of age and from the documents, it is clear that she is suffering from various old age ailments. Hence, ground floor portion would be more suitable for residing for her being senior citizen and suffering from old age ailments than any other floor. Further PW1 during cross examination has stated that presently she is having first floor in her possession having three rooms and she is residing with her son in the said premises. The respondent has not denied that married daughter, sister, brothers of the petitioner as well as the parents of the petitioner are on visiting terms with her. The number of family members of the petitioner is not disputed/ denied. It is not necessary for the petitioner to disclose how many days her daughter or her sister or bothers or parents visit her as that is the personal affair of the petitioner. Even if they visit once a year petitioner has right to accommodate them comfortably in the accommodation available to her. It has been held in Sudesh Kumar Soni v Smt Prabha Khanna 2008 IX, AD (Delhi) 657, Amir Charora v. Suraj Bhasin 1981(2) RCR 513 that if the landlady wishes to live with comfort in a house of her own, the law does not command or compel her to squeeze herself tightly into lesser premises. In case separate bed rooms for self and wife, son and daughter as also for guests e.g. married "daughters is claimed the same is considered to be bonafide requirement of the landlord. In Pravin Sarin v. Manbir Singh, 20 (1981) DLT 61, 152 (2008) DLT 556. S.K. Gupta v. R.C. Jain 23 (1983) DLT (SN) 44, Krishan Kumar Gupta v. Swadesh Bhushan Gupta 152 (2008) DLT 556 it has been held that separate bed E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 15 of 22 rooms for self and wife, sons and daughter as also for guests e.g. married daughter is bonafide requirement. Further more, it has been held in Smt Prabhu v. K. Sharma, 1997 RLR 242 SC, Tilak Raj v. Krishan Lal 1982 RLR (Note) 33, Bulaqi Ram v. Suraj Bhan 1982 RLR 93 that room for her married daughters and for guests/ relatives being the need of the petitioner is justified. Moreover the petitioner as well as her parents are senior citizens and ground floor would be more suitable for her residence and her visiting parents which has also been pleaded by petitioner throughout. Petitioner is also claming space for safe parking of the car. In Subhash Chander Gupta v. Vasudev RC Rev. No. 101/2005 it has been held that landlord is entitled to evict tenant from the ground floor if he wants accommodation for car parking from the tenant. Thus, a separate room for her married daughter and for guests/ relatives as well as requirement of ground floor on the ground of being ailing senior citizen and for safe parking of the car is a bonafide requirement and is justified.
25. Further PW1 has categorically stated that her son is not running bakery shop at Kalkaji. She has also stated that she wants the presence of her son nearby as she is old and sick and nobody is there to look after her. She has stated that her son will do business when the shop will be vacated. It is also stated that when her son bring the goods for sale, he has to keep it on the first floor which become very difficult to accommodate. Whereas RW1 during cross examination stated that he cannot produce any documents to show that son of the petitioner is running any bakery business from the alleged shop at Kalkaji. He also cannot produce any E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 16 of 22 documents to show whether any firm under the name and style of M/s Super Bakes is being run by the petitioner or by her son. Hence for want of documents the defence of the respondent is not proved. In Joginder Pal v. Naval Kishore Behl, 2002 (1) RCR Rent 583 (SC) it has been held that the landlord is entitled to evict tenant from non residential premises for use of his family member or a person who is dependent on landlord or on whom the landlord is dependent. 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. Thus, the requirement of the petitioner to self employ her son in the tenanted premises is found to be bonafide need and justified in her old age as she wishes to have the presence of the her near her. In Sarla Ahuja v. United India Insurance Company Ltd. (1998) 8 SCC 119 it has been held that Rent Controller shall not proceed on the presumption that the requirement of the landlord is not bona fide and that when the landlord shows Prima facie case, a presumption that the requirement is bona fide is to be drawn. Thus, from the statements of both the parties and documents on record, the bonafide requirement of the petitioner for the tenanted premises is duly proved.
Non availability of alternate suitable accommodation
26. Respondent has stated that the petitioner is having two more shops available on the ground floor of the suit premises which are on the front side in front of the road. The said shops are to be available to start business for her son, if needed. He has relied upon photographs of shops Ex. PW1/3 and Ex. PW1/4. It is stated that the petitioner is having two E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 17 of 22 more shops at K18A, Kalkaji, New Delhi from where the son of the petitioner is running bakery business for the last 12 or more years in the name and style of M/s Super Bakes which has also been admitted by petitioner's husband in the previous eviction petition filed by him. The petitioner is also having another property at C16, Local Shopping CentreI, Paschimi Marg, Vasant Vihar, New Delhi. The photographs of the property are Ex. RW1/5 and Ex. RW1/6.
27. Per contra, the petitioner has stated that the other two shops in the suit property are sold to Shri Anil Jindal and Shri Alok Niwani to which more than 5 years has passed due to requirement of fund to maintain herself and other needs of petitioner and her son except the premises in question. PW1 has stated that the shops situated at Vasant Vihar is too far from the residence of the petitioner and has been tenanted long back to one tenant, thereby the same is not available for doing business. During cross examination, PW1 has categorically denied having any shops except the suit premises. RW1 has stated that he cannot produce any document to show that the petitioner is owner of another property situated at Kalkaji or that the shop at Kalkaji is under possession of petitioner. He also could not produce any document to show that petitioner is owner of any of the shops situated at ground floor of property in question nor he could produce any document to show that any portion of the property at Vasant Vihar is occupied by the petitioner. The document Ex. RW1/3 to Ex. RW1/6 do not show who is the owner of the property situated at Jawahar Nagar and Kalkaji. Moreover, petitioner has already stated that E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 18 of 22 the portion of Vasant Vihar property is occupied by the tenants and as such the same cannot be treated as alternate accommodation.
28. Moreover, even if it is presumed that the property at Kalkaji and Vasant Vihar is in the name of the petitioner, however, the same is situated quite far from the premises in question for which the bonafide need is shown by the petitioner. The petitioner has categorically stated that the tenanted premises situated on the ground floor and she is residing on the first floor. Hence, in her old age as she requires a son to be near her, the tenanted premises would be more suitable available to the petitioner and her son for there bonafide need. The premises at Kalkji as stated by respondent cannot be termed as suitable in any manner for the petitioner as the same is far away from the residence of the petitioner and in case any business is started by son of the petitioner from the portion which is situated just below the residence, the son would be available at short notice to look after the petitioner for her medical requirement and can simultaneously save time and expenses in commuting between the residence and said shop at Kalkji. In the case of Mumtaz Begum v. Mohd. Khan (supra) it has been held that nothing wrong can be found with the choice express by the landlords in opting to evict tenants from the tenanted premises rather than opting to occupy property which is far away, even if held to be available to the landlords. There is a rationale in the choice exercised by the landlord for the premise close to their existing accommodation rather than far away.
29. The defence has been raised by respondent, hence, the burden of E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 19 of 22 proving the said defence was on the respondent. However, the respondent has failed to produce any document in support of his contention. Thus the respondent is not able to prove the availability of any alternate suitable accommodation with the petitioner.
30. One more contention is raised by the respondent is that the landlord wants to increase the rate of rent or let out to some other person. However, the said contention of the respondent is without any basis as in case, the petitioner tries to sell the premises or let it out to any other person at exorbitant rate, the remedy u/s 19(2) of the DRC Act is available of the respondent, for taking repossession of the tenanted premises. In case of O.P. Soni v. Om Kumar (supra) it has been held that such averments are only a mere assertion and a desperate plea on the part of the respondent.
31. The other contention raised by the respondent is that the petitioner has filed the present petition to some how throw out old and bonafide tenants. The respondent company does not have any other place in that particular area to use for its godown. The business of the respondent company and several employees working with respondent will be effected if the eviction order is passed against the respondent. However, it is a well settled principle of law that a Rent Controller has to see the bonafide requirement of the petitioner and not the comparative hardship of the respondent. It is well settled position of law laid by the Apex Court in Bega Begum and Ors. v. Abdul Ahad Khan and Ors (1979) AIR 272 that "the inconvenience loss and trouble resulting from denial of decree E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 20 of 22 of eviction in favour of the landlord far outweigh the prejudice or the inconvenience which will be caused to the tenant." Moreover, it has been pointed out by the Apex Court and Madras High Court in M/s Bentool Steel Products Pvt Ltd v. O.M.A. Mohammed Omar in CA No. 112 of 2002 that "comparative hardships of the tenant is unsustainable in the eye of the law" and "a little inconvenience to the tenant cannot be called a hardship. In case of Mohd. Ayub v. Mukesh Chand (2012) 2 SCC 155, it was observed that "the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor". The same has been reiterated in Puran Chand Aggarwal v. Lekh Raj 2010 (2014) DLT 449. Thus, the said contention of the respondent is also without any basis.
32. In totality the facts and circumstances, the present eviction petition filed by the petitioner against the respondent is allowed. The petitioner is held entitled for recovery of the tenanted premises, i.e., One hall with bathroom on the ground floor of property no. 5UA, Jawahar Nagar, Delhi110007 as shown in red colour of the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 21 of 22 premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act. In the facts and circumstances of the case no order as to costs and both the parties to bear their own costs. SUSHEEL Digitally signed by SUSHEEL BALA BALA DAGAR Date: 2018.07.24 DAGAR 04:16:46 +0530 Announced in open Court (Susheel Bala Dagar) on 23rd Day of July, 2018 Pilot Court, CCJ cum ARC(Central) Tis Hazari Courts, Delhi.
(This judgment contains 22 pages.) E. No. 295/17 Usha Bhatia v. The Amritsar Transport Company (Pvt.) Ltd. (ATC Logistical Solution Pvt. Ltd.) Page 22 of 22