Delhi District Court
Prof. Ram Prakash vs Sh. Sheikh Nasim Ahmed on 22 October, 2011
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
EVICTION PETITION NO. E51/09
Prof. Ram Prakash
S/o late Sh. Brij Mohan Lal
R/o 212, Sukhdev Vihar, New Delhi110025
...... Petitioner.
Versus
Sh. Sheikh Nasim Ahmed
S/o Sh. Sheikh Mohd. Rangila
R/o House No. 2113,
Ahata Kaley Sahib,
Qasimjan Street, Delhi 110006
....... Respondent.
Petition u/s 14(1) (g) of Delhi Rent Control Act 1958
Date of Institution of the case : 13.11.2007
Date of Judgment reserved : 27.09.2011
Date of Judgment pronounced : 22.10.2011
JUDGMENT:
1. Vide this judgment I shall dispose of an eviction petition filed by the petitioner u/s 14 (1) (g) of DRC Act against the respondent. Eviction Petition No. E51/09 Page 1 of 28
2. Brief facts as stated in the petition are that the petitioner is the owner/landlord of the property bearing No. 7, Community Centre, East of Kailash, New Delhi - 110065 and the respondent is tenant in respect of one shop measuring 14'8" x 9'2" covered at a height of 9' on the ground floor of the aforesaid property. It is stated that the suit premises were let out to the respondent in January 1981 vide lease agreement dated 21.12.1980 and the current monthly rent of the suit premises is Rs. 448.65/ including service tax of 12.36%. It is further stated that 134 sq. ft. area is in the possession of the respondent/tenant on the ground floor and rest of the ground floor area measuring about 1200 sq. ft. is in possession of the landlord/petitioner. It is further stated that due to scattered small shops, the landlord is not able to earn any rental income from his area of 1200 sq. ft. and, therefore, the petitioner requires the premises of 134 sq. ft. in possession of the respondent to rebuild the ground floor partition walls to put to better use of about 1200 sq. ft. in possession of landlord for optimum utility of the premises. It is further averred that additions and alternations of internal walls on the ground floor cannot be carried out without vacation of the premises in question and proposed work will meet the needs of social surrounding and shall be completed within prescribed period of six months. It is further Eviction Petition No. E51/09 Page 2 of 28 averred that petitioner also undertakes to provide equivalent area of 134 sq. ft. to the respondent in the premises shown in orange in the site plan facing open parking road and the petitioner has also obtained the total estimates of addition and alteration from the registered Architect and has financial liquidity for the proposed addition and alteration. Hence, the present petition and it has been prayed that an eviction order may be passed in favour of the petitioner and against the respondent in respect of the suit premises.
3. The respondent has contested the petition by filing the written statement contending that present petition is an abuse of process of law and has been filed to pressurize the respondent to vacate the suit premises. It is stated that petitioner has no intention to reconstruct or to carry out the substantial additions and alterations in the property in dispute as the premises is in good condition and it does not require any change, alteration, addition and rebuilding. It is further stated that condition of the shop in dispute will not at all be changed if it is allowed to be reconstructed and hence no purpose will be served if the shop is demolished and then reconstructed. It is further stated that alteration or reconstruction of the property is not in public interest and the alleged plan and estimate of the alleged construction has been manipulated and Eviction Petition No. E51/09 Page 3 of 28 have not been properly prepared nor got sanctioned from MCD and necessary funds for the said purpose are also not available to the petitioner. The other contents of the petition are stated to be wrong and denied and the respondent has prayed for dismissal of the petition.
4. The petitioner has filed the replication to the written statement in which averments made in the petition have been reiterated and re affirmed and those made in the written statement have been controverted.
5. In order to prove his case, the petitioner examined himself as PW1 and led his evidence by way of affidavit which is Ex. P1/A in which he has reiterated the averments made in the petition and replication and has placed on record the site plan showing the suit premises as Ex. PW1/1, original lease deed dated 21.12.1980 as Ex. PW1/2, copy of legal notice dated 31.08.2007 as Ex. PW1/3 and reply dated 24.09.2007 sent by the respondent as Ex. PW1/4 and copy of passbook of his saving bank account as Ex. PW1/5.
6. The petitioner has also examined Sh. J.S. Sayal, Architect as PW2 who has filed his inspection and valuation report as Ex. PW2/1.
7. On the other hand, respondent examined himself as RW1 and filed his evidence by way of affidavit which is Ex. RW1/A. In the Eviction Petition No. E51/09 Page 4 of 28 examination in chief he deposed more or less in terms of the averments made in the written statement.
8. The respondent has also examined Sh. Firozuddin as RW2 who filed his evidence by way of affidavit as EX. PW2/A.
9. I have heard the Ld. Counsel for the parties. I have also gone through the written submissions filed by both the parties and perused the record carefully.
10. In order to prove a case u/s 14 (1) (g) of DRC Act, the following ingredients are required to be fulfilled :
(i) the premises must be required bonafide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations.
(ii) the court must be satisfied that such building or rebuilding or additions or alterations cannot be carried out without premises being vacated.
11. Sub section 8 of section 14 is also relevant which follows:
" No order for the recovery of possession of any premises shall be made on the ground specified in clause (g) of the proviso sub section (1), unless the Controller is satisfied that the proposed reconstruction will not radically alter the purpose for which the premises were let or that Eviction Petition No. E51/09 Page 5 of 28 such ramedical alteration is in the public interest, and that the plans estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord."
12. The case of the petitioner is that suit premises i.e. one shop in possession of the respondent measures 134 sq. ft. on the ground floor of the property bearing No. 7, Community Centre, East of Kailash, New Delhi110065 and the remaining portion of 1200 sq. ft. on the ground floor is in the possession of the petitioner. The said 1200 sq. ft. area in possession of the petitioner is scattered into two small shops measuring 600 sq. ft. area each and due to these scattered small shops, he is not able to earn any rental income from his area of 1200 sq. ft. and, therefore, he requires the suit shop of about 134 sq. ft. for the purpose of reconstruction after dismantling its partition walls within the existing structure so as to combine the other two scattered shops of total area of 1200 sq. ft. which are lying vacant in possession of the petitioner for the last many years. It is further case of the petitioner that purpose of reconstruction is to put the existing shop area of 1200 sq. ft. to more profitable use consistent with modern requirement of good economics and social surrounding needs and the substantial additions and alternation of internal space arrangements on the ground floor cannot be Eviction Petition No. E51/09 Page 6 of 28 carried out unless the respondent/tenant is evicted from the suit shop.
13. On the other hand, the respondent has taken a plea in the written statement that present petition has been filed to pressurize the respondent to vacate the suit premises and the petitioner has no intention to reconstruct or to carry out the substantial additions and alterations in the property in dispute as the premises is in good condition and it does not require any change, alteration, addition and rebuilding. It is also contended by the respondent that alteration or reconstruction of the property is not in public interest and the alleged plan and estimate of the alleged construction has been manipulated and have not been properly prepared nor got sanctioned from MCD and necessary funds for the said purpose are also not available to the petitioner.
14. In order to prove his case, the petitioner has examined himself as PW1 and has stated in his evidence that he is owner of property bearing No. 7, Community Centre, East of Kailash, New Delhi and had inducted the respondent as tenant w.e.f. January 1981 for a part of his shop area of 14'8" x 9'2" totaling to 134 sq. ft. out of total shop area of plot 1520 sq. ft. on the ground floor of the aforesaid property vide lease deed. He has further stated that he is in possession of usable shop area of about 1200 sq. ft. scattered in two small areas of 600 sq. ft. each and one of the Eviction Petition No. E51/09 Page 7 of 28 shop of 600 sq. ft. is lying vacant for the last more than 15 months and prospective tenants require combined area of about 1200 sq. ft. He has further stated that over the period of tenancy, social and economic surrounding have changed and the existing scattered structure of 1200 sq. ft. in his possession can be put to good business and sound economical and more profitable use if the two scattered areas are combined together as a continuous whole in one unit and it requires additions and alternations of internal walls on the ground floor which cannot be carried out without vacation of the premises under the occupation of the respondent.
15. In the crossexamination of the petitioner, nothing material could be extracted to shake his testimony. He stated in his crossexamination that phonographs Ex. PW1/R1 is of the suit premises and photograph Ex. PW1/R2 and R3 show the back portion of the premises in question. He admitted that there is a parking of MCD on the backside of the premises in question. He denied the suggestion that there is no shop in the back portion of property in question. He stated that one shop in his occupation in the property open in the back side and there are doors on both the sides of the building of his shop. Voluntarily he stated that both doors are used as his main door and in fact the back door is used Eviction Petition No. E51/09 Page 8 of 28 more than the front door. He further stated that the face of the market is on both the sides. Voluntarily he stated that the parking side is used more. He further stated that there are several shops facing the Municipal parking in the market. He denied the suggestion that there is not a single shop in which customers comes from the back side to purchase goods. He further denied the suggestion that all the shops/commercial establishments have approach only from the front side or that all the dealings are being done from the front side. He stated that the prospective tenants want the bigger area for their business establishment. He admitted that there is a covered veranda in front of the suit shop and further that there is no covered veranda on the backside but there are chajjas. He categorically stated that he has not got any site plan sanctioned from the authorities as it is not required and the alteration sought are internal alteration and he only wants to alter the portion in issue and another portion of the building. He further admitted that the entire building is structurally sound and well maintained and the suit shop is also structurally sound and well maintained. He denied the suggestion that he does not have bonafide requirement of the shop in dispute for rebuilding or demolition of the walls. He further denied the suggestion that he has malafide intentions to get the suit shop vacated Eviction Petition No. E51/09 Page 9 of 28 from the respondent and he wants to get rid of the respondent as he is paying the lowest rent in the building.
16. From the pleadings of the parties and the aforesaid evidence of the petitioner, it has emerged out that there is no dispute so far the relationship of landlord and tenant between the parties is concerned. Undisputedly, the suit premises which is a shop measuring about 134 sq. ft. on the ground floor was let out by the petitioner to the respondent vide lease deed Ex. PW1/2. It is also undisputed fact that petitioner is in occupation of 1200 sq. ft. area on the ground floor which is scattered into two small shops measuring 600 sq. ft. each as shown 'Y' and 'Z' in the site plan Ex. PW1/1. Now, the case of the petitioner is that the aforesaid two scattered small shops of 600 sq.ft. each are lying un utilized and if they are allowed to be combined by removing the partition walls of the suit shop, it will meet the modern requirement of the good economics and social surrounding needs and will be more profitable to the petitioner. It is also evident from the testimony of the petitioner that these two shops which are having an area of 600 sq.ft. each and are marked as 'Y' and 'Z' in the site plan Ex. PW1/1 are lying vacant for a considerable period of time which has also been admitted by the respondent in his crossexamination when he states that, "It is Eviction Petition No. E51/09 Page 10 of 28 correct that the two shops Mark Y and Z in the site plan Ex. PW1/1 are lying vacant." In this regard, another witness examined by the respondent RW2 Sh. Firozuddin also categorically admitted in his crossexamination that the shops adjoining to the suit shop are lying vacant and a board of tolet is hanging.
17. It has also come on record from the evidence of the petitioner that the suit shop was constructed 35 years ago on the old shopping pattern and this fact is not disputed. It can be taken notice of that with the passage of time, the requirement of the business establishments keep on changing. In the recent years, the trend of markets has changed considerably and the modern trend is of big malls and showrooms as business establishments which attract comparatively more footfalls. Gone are days when only small shops used to cater the needs of the customers. In such circumstances, the aspiration of the petitioner to bring his building in conformity with the current trend by consolidating his scattered portions into one bigger unit for renting out, cannot be said to be unreasonable or unwarranted. The factum of the lesser utility of the scattered and comparatively smaller shops has come on record when the respondent himself as well as his another witness having admitted the shops lying vacant despite intention of the petitioner to let out by Eviction Petition No. E51/09 Page 11 of 28 placing signboard to this effect.
18. Therefore, if the petitioner wants to reconstruct the area in his possession of about 1200 sq. ft. which is scattered into two small shops of about 600 sq.ft. which are also lying vacant by combining them into one big space to let out the same to the proposed customer for some profitable use, it cannot be said that the petitioner has any malafide intention in doing so. It has been held by the Hon'ble Apex Court in Neta Ram Vs. Jiwan Lal AIR 1963 SC 499 that, "The Controller has to be satisfied about the genuineness of the Claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord and this can only be established by looking at all the surrounding circumstances such as condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on." It has been further held by the Hon'ble Apex Court in M/s Panchamal Narayan Shenoy Vs. Basthi Venkatesha Shenoy 1970 RCR 307 SC that, "In considering the reasonable and bonafide requirement of the landlord under this clause the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. In our Eviction Petition No. E51/09 Page 12 of 28 opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of building is such that it requires immediate demolition." It has been held in Kailash Kumar Vs. B. S. Raizada 1972 RCR 433 that it is the purpose of clause (g) to enable the landlord to improve and develop his property further so as to make it more profitable to himself. It has been held in P.S. Pareed Kaka & Ors. Vs. Shafee Ahmed Saheb (2004) 5 Supreme Court Cases 241 that it is not for the tenants to suggest that there is no need to demolish the existing building and construct the new building. The landlord in our view is entitled to make use of his property for any reasonable purpose.
19. In view of law laid down in the aforesaid authorities, it is evident that if the petitioner intends to reconstruct his property in order to combine the shop space of the suit premises with two other fragmented shop areas of 600 sq. ft. each marked Y and Z lying vacant from last 3 ½ years in the possession of the petitioner thereby to put the property to a more profitable use after dismantling the partition walls and by reconstructing, it cannot be said that the petitioner has no bonafide requirement of the suit premises as alleged by the respondent.
20. The bonafide of the petitioner is also evident from the fact that he Eviction Petition No. E51/09 Page 13 of 28 has offered the respondent the alternative space of similar area as occupied by the respondent at present in the same shopping premises after its reconstruction.
21. Though, the respondent has taken a plea in his evidence that his business would be completely ruined in case possession of the suit shop is taken from him or alternatively a shop towards the car parking is given. He has further stated that the face of the market including the shop in dispute is towards the west corridor/verandah and the customer come to the said front side and there is no market at the back of the building and there is car parking touching to the building from the backside. As such, respondent has come up with a case that alternative space offered by the petitioner is not acceptable to him as the said alternative shop is at the backside of the building in question towards the car parking and there is hardly any distance between the car parking and the building in dispute.
22. Now, let us consider as to whether there is any merit in this contention of the respondent that the alternative space offered by the petitioner to the respondent is not suitable.
23. The petitioner has offered the alternative shop of similar size as presently occupied by the respondent and same has been shown in Eviction Petition No. E51/09 Page 14 of 28 orange colour in the site plan Ex. PW1/1. In this regard, the petitioner has admitted in his crossexamination that the photographs Ex. PW1/R1 is of the suit premises and the photograph Ex. PW1/R2 and R3 show the back portion of the premises in question. He further categorically admitted that there is a parking of MCD on the backside of the premises in question. He denied the suggestion that there is no shop in the back portion of the property in question. He stated that one shop in his occupation in the property open in the back side. He further stated that there are doors on the both sides of the building of his shop. Voluntarily, he stated that both are used as his main door and in fact the back door is used more than the front door. He further stated that the face of the market is on both the sides. Voluntarily, he stated that the parking side is used more.
24. From the aforesaid statement of the petitioner, it is not in dispute that the alternative shop shown in orange colour is situated at the backside of the building in question towards the car parking. It is also evident that the opening of the alternative shop is also from the backside i.e. from the parking side and there are several other shops which are opening towards the parking side. In this regard, respondent has categorically admitted in his crossexamination that the shop marked Y Eviction Petition No. E51/09 Page 15 of 28 in the site plan Ex. PW1/1 was earlier in the possession of M/s Dewan Tailors who was operating in this shop prior to him. He further stated that it is lying vacant and there is a shutter on both the side, one towards verandah marked X1 and another towards parking marked X2. He further admitted that the shutter door at X2 was existing from the beginning of the occupation of the shop marked Y occupied by M/s Dewan Tailors, i.e. more than 28 years. He further admitted that in the shop marked Z in the Ex. PW1/1 there are two shutter doors one at X4 towards the parking and another towards the verandah i.e. X5.
25. The aforesaid statement of the respondent makes it clear that earlier there was another tenant under the petitioner in the name and style of M/s Dewan Tailors who was occupying the shop marked Y in the site plan Ex. PW1/1 which is now lying vacant and the said shop has entrance from both the sides i.e. from the parking side and from the verandah/market side. Similarly, it has also come on record from the evidence of the respondent that another shop in possession of the petitioner marked Z in the site plan has also two shutter doors from the parking side as well as from the verandah side.
26. Not only this, the respondent has also categorically admitted in his crossexamination that after the parking area there is a Mother Dairy Eviction Petition No. E51/09 Page 16 of 28 booth on the road. He further admitted that adjoining to the Mother Dairy, there is a Safal vegetable shop on the main road. He further admitted that adjoining to Z shop is the building No. 6, Community Centre, East of Kaialsh and in the said building there is a computer office which opens towards the parking. He further stated that there are four shops in building No. 9, Community Centre, East of Kailash and out of the four shops HDFC Bank's opening is towards parking side. He further stated that the shop in the name of Hot Spot is located in the aforesaid building no. 9, Community Centre, East of Kailsih, New Delhi and it is openable on both parking as well as front side. He further stated that adjoining to the shop there is an ATM of HDFC Bank in the same building which opens towards the road and the parking is also towards the road. He further admitted that in the building no. 8, there is a Kotak Bank ATM which has opening towards parking and the road.
27. The respondent has further admitted in his crossexamination that the photographs Ex. RW1/PW1/3, Ex. RW1/PW1/5 and Ex. RW1/PW1/6 belong to HDFC Bank and Hot Shop. A perusal of the aforesaid photographs Ex. RW1/PW1/3, Ex. RW1/PW1/5 and Ex. RW1/PW1/6 shows that same belong to the HDFC Bank and Hot Shop which have access towards the parking side as also admitted by the Eviction Petition No. E51/09 Page 17 of 28 respondent. It is also admitted by the respondent that the shop Angad Estate exists at 47, Community Centre, East of Kailash, New Delhi and there is also a firm of Garg Air Links Online.com at 47/1 Community Centre, East of Kaislah, New Delhi and the shop Car Scan Centre also exists at 46/1, Community Centre, East of Kailash, New Delhi. The respondent has further admitted that there is also a shop of Vision Optic at 46/1 Community Centre, East of Kailash, New Delhi and there is also a firm with the name Amtrak at 6, Community Centre, East of Kailash, New Delhi and only access to these shops is from the parking side. He further categorically admitted that the photographs Ex. RW1/PW1/2, Ex. RW1/PW1/3, Ex. RW1/PW1/5, Ex. RW1/PW1/6, Ex. RW1/PW1/2A, Ex. RW1/PW1/11, Ex. RW1/PW1/12, Ex. RW1/PW1/13, Ex. RW1/PW1/14, Ex. RW1/PW1/15, Ex. RW1/PW1/16 belong to the aforesaid shops having access towards the parking side. He also admitted that all these offices and the shops have more than one employee. He further admitted that Kotak & Mahindra Bank have recently opened their ATM in 8, Community Centre, East of Kailash, New Delhi and it is opening towards the parking.
28. From the aforesaid categorical admission on the part of the respondent in his crossexamination, it is evident that there are several Eviction Petition No. E51/09 Page 18 of 28 shops and offices which have access from the parking side. Therefore, the contention of the respondent that the alternative space offered by the petitioner which is also having access towards the parking side is not lucrative is without any substance. Not only this, the respondent is admittedly running the business of spectacles and one of the shop dealing in the same business is also running which has access towards the parking side and it is so admitted by the respondent in his cross examination when he states that one of the shops whose photographs have been filed also deal in the spectacles, the same trade in which he is trading. It has also come on record from the crossexamination of the respondent that only access to the upper floors in the building where the suit shop is situated is from the parking side. The respondent has categorically admitted that, "It is correct that entry to the upper floor is from the stairs towards the parking side."
29. In view of aforesaid statement of the respondent in his cross examination, when there are number of shops and offices which has access only towards the parking side and even the entry to the upper floors is also from the parking side, then to say that alternative space as offered by the petitioner to the respondent which has opening towards the parking side would completely ruin the business of the respondent Eviction Petition No. E51/09 Page 19 of 28 does not seem to be plausible.
30. Though, the respondent has also examined Sh. Firozuddin as RW2 to support his case that his business will completely ruin if he is given the shop towards the parking side where there is no market, but testimony of this witness is not much reliable as his deposition in the crossexamination is in sharp contradiction to the statement of the respondent regarding location of the shops. In the crossexamination, RW2 has stated that he often visits the market where the shop of the respondent is located to purchase various household items. He further stated that he knows there is a motherdairy booth at the back of the shop of the respondent, but he does not know whether there is a Safal vegetable shop or not. He further stated that he knows HDFC and Kotak Mahindra Bank are there but they are away and in different location from the suit shop, though he admitted that they are in the community centre. He further stated the shops shown in the photographs Ex. RW1/P1/2,3,5,6,2A,11, 12 and 13 are situated in the community centre but far away from the suit shop and they are not located towards the parking. He further stated that the HDFC Bank and Kotak Mahindra Bank do not open towards the parking.
31. As such the statement of RW2 that the shops shown in Eviction Petition No. E51/09 Page 20 of 28 photographs Ex. RW1/P1/2,3,5,6,2A,11, 12 and 13 are not located towards the parking is contradictory to the statement made by the respondent in his crossexamination that these shops and offices shown in the photographs Ex. RW1/P1/2,3,5,6,2A,11, 12 and 13 have access towards the parking side. Therefore, the testimony of RW2 is not worth reliance.
32. In view of above, the apprehension of the respondent that the alternative space offered by the petitioner is not located in the market and having its access from the parking side and his business would be completely ruined if this shop is given to him is without any basis and appears to be figment of imagination. Moreover, it has been held by the Hon'ble Apex Court in Mst. Bega Begum & Ors. Vs. Abdul Ahad Khan (Dead) by LRs. & Ors. 1979 (1) SCC 273 that, "To insist on getting an alternative accommodation of a similar nature in the same locality will be asking for the impossible. The defendants are tenants and had taken the lease only for 10 years, but have overstayed for 20 years and they cannot be allowed to dictate to the landlord that they cannot be evicted unless they get similar accommodation in the same locality." It has been further held in N. Andal & Ors. Vs. M. Salim & Anothers by the Hon'ble High Court of Madras that, "When relative Eviction Petition No. E51/09 Page 21 of 28 hardship is considered, the most important factor to be considered is, whether an alternative building is available for the tenant to continue his business. It need not necessarily be shown that the business could be carried on the alternative building as profitably as in the original building, because, profits depends more upon economic factors than anything else. Eviction on the ground of bonafide own use is not disallowed even if the tenant is not getting an alternative building in the same locality i.e in the same place. The court cannot presume that if the tenant shifts to another building, he will be put to great hardship and he will not be in a position to do business profitably. The court also cannot recognize the fact that a particular area is suitable only for a particular kind of business. Merely because in a particular street or locality a particular business alone is carried on, it does not follow that other business cannot survive in that area."
33. The respondent has also contended in the written statement that petitioner has no intention to reconstruct or to carry out the substantial additions and alterations in the property in dispute as the premises is in good condition and it does not require any change, alteration, addition and rebuilding. However, it is also not the case of the petitioner that building in question is in dilapidated condition and he requires the suit Eviction Petition No. E51/09 Page 22 of 28 premises bonafide for the purpose of reconstruction of the whole building. In this regard, the petitioner has categorically stated in his crossexamination that the entire building is structurally sound and well maintained and the suit shop is also structurally sound and well maintained. However, the petitioner is entitled to get the suit shop vacated even if the building in question is in sound and good condition because as already discussed herein above that the intention of the petitioner cannot be said to be malafide if he wants to combine his two small scattered shops measuring of 600 sq. ft. each into one big shop by removing the internal walls of the suit shop for better profitable use. It has been held in S. Venugopal. Vs. A. Karruppusami & Anr. (2006) 4 SCC 507 that, "Even if a building is not in a dilapidated condition, it may be demolished for the purpose of erecting a new building on the same site." It has been further held in Kailash Kumar Vs. B.S. Raijada 1972 RCR (Rent) 433 by the Hon'ble High Court of Delhi that, "Where the landlord planned to demolish his old style one storied house to improve and develop his property so as to make it more profitable to himself, he need not prove that premises were old, unsafe or unfit for human use. Petition for eviction under clause (g) of section 14 (1) of the Delhi Rent Control Act, 1958 should be considered as concerned only Eviction Petition No. E51/09 Page 23 of 28 with the requirement of the landlord for rebuilding the premises being bonafide. It cannot be taken to be concerned with the condition of the premises as that is subject matter of clause (f) of section 14 (1) of the Rent Act"
34. So far the contention of the respondent that the petitioner has not got sanctioned plan from MCD for the proposed reconstruction is concerned, the case of the petitioner is that he does not intend to demolish the entire building where the suit shop is situated and only internal changes are required to be made by removing the internal walls of the suit shop for which no sanctioned plan is required from MCD or any other authority. In this regard, the petitioner has categorically stated in his crossexamination that, "I have asked addition, alteration and demolition in the building. I have not got any site plan sanctioned from the authorities as it is not required and the alterations sought are internal alteration. I only want to alter the portion in issue and no other portion of the building."
35. The petitioner has also examined Sh. J.S. Sayal, who is a registered Architect as PW2 who has prepared the inspection and valuation report which is Ex. PW2/1. He categorically stated in his evidence that the plan attached with the report was given by the landlord Eviction Petition No. E51/09 Page 24 of 28 and he verified the same after visiting the site. He further stated that the shop plot is opened on both the sides, front in varandah and other side towards parking and it is more convenient for the customer to enter in to the shop from the parking side.
36. In his inspection & valuation report Ex. PW2/1, it is categorically mentioned that the proposed demolition of walls and surrounding the shop of 134 sq. ft. reconstruction are internal arrangements and these do not require any sanction from Municipal Corporation of Delhi or from any other authority. It is further stated that the demolition and reconstruction are needed for making room for larger shop for obtaining optimum use of 1200 sq.ft. of ground floor shops and for getting more advantageous terms of rent keeping in view the social surrounding and current days business need. It is also stated in the inspection & valuation report Ex. PW2/1 that the purpose for which the premises were let out would remain the same after reconstruction. The estimates of structural changes of demolition and reconstruction shown in the site plan including construction of walls, repairs of flooring and other work in the existing structure has also been given in the valuation report Ex. PW2/1.
37. In the crossexamination of PW2 nothing material could be Eviction Petition No. E51/09 Page 25 of 28 extracted to shake his testimony. He categorically stated that he has prepared the report Ex. PW2/1 and he has used the method labour plus material. He admitted that there is no verandah at the back side of the property in dispute. Voluntarily, he stated that the main approach to the building is from the parking side to go to the 1st, 2nd and 3rd floor. He denied the suggestion that a permission is required for removal of the wall of the shop in dispute as shown by letter A,B,C and D.
38. On the other hand, though the respondent has contended that the petitioner has not got sanctioned plan from MCD for the proposed construction, but no contrary evidence has been produced on record by the respondent that for carrying out the internal changes/alterations, any sanctioned plan is required from the MCD or from any other concerned authority.
39. So far the another contention of the respondent that the necessary funds is not available with the petitioner for the proposed reconstruction is concerned, the petitioner has placed on record the photocopy of passbook of his saving bank account with Central Bank of India at Sukhdev Vihar, New Delhi as Ex. PW1/5 to show that he has sufficient funds to carry out the internal changes on the ground floor of the property in question.
Eviction Petition No. E51/09 Page 26 of 28
40. In view of aforesaid discussions, the petitioner has established that he requires the suit shop bonafide for the purpose of reconstruction of the entire ground floor for which partition walls of the suit premises need to be demolished so as to combine the space of the suit premises with two other fragmented shop areas of 600 sq. ft. in possession of the petitioner which are lying vacant from the last 3 ½ years. It has also been established on record that proposed addition/alteration will not change the purpose for which the premises was let out and the letting purpose would remain the same even after its reconstruction. The petitioner has also proved that he has also worked out the estimates of the structural changes and has got necessary funds for the proposed addition/alteration/reconstruction. Hence, the petitioner has proved the grounds u/s 14 (1) (g) of DRC Act.
41. However, section 20 of DRC Act provides protection to the tenant while passing an order under clause (g). It requires the Controller, while passing an order under clause (g) viz. (1) to ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted, (2) to record the fact of the eviction in the order, if the tenant so elects and (3) to specify in the order the date on or before which the tenant shall deliver possession so as to Eviction Petition No. E51/09 Page 27 of 28 enable the landlord to commence the work of building or rebuilding as the case may be.
42. Further as per section 20 (2) of DRC Act, if the tenant delivers possession on or before the date specified in the order, the landlord shall, on the completion of the work of repairs or building or re building, place the tenant in occupation of the premises or part thereof.
43. As such by virtue of section 20 of DRC Act, the election is to be made by the tenant whether he wants to be placed in occupation of the premises or part thereof from which he is to be evicted and if the tenant elects so, the date is to be specified on which the tenant shall deliver the possession to enable the landlord to commence the work of building or rebuilding. Hence, matter be put up for compliance of provisions as contained in section 20 of DRC Act.
Announced in the open court (Balwant Rai Bansal)
on 22nd October, 2011 ARC/ (South), New Delhi
Eviction Petition No. E51/09 Page 28 of 28
E51/09
22.10.2011
Present: None for the petitioner.
Respondent in person
Vide my separate judgment dictated and announced in the open court, present petition u/s 14 (1) (g) of DRC Act is allowed.
However, by virtue of section 20 of DRC Act, the election is to be made by the tenant whether he wants to be placed in occupation of the premises or part thereof from which he is to be evicted and if the tenant elects so, the date is to be specified on which the tenant shall deliver the possession to enable the landlord to commence the work of building or rebuilding. Hence, put up on 08.11.2011 for compliance of provisions u/s 20 of DRC Act.
(B.R. Bansal) CCJ/ARC/ACJ (South), New Delhi 22.10.2011 Eviction Petition No. E51/09 Page 29 of 28