Delhi District Court
Pankaj Gulati vs Varsha Mehra on 9 November, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 27/09
ID No.: 02403C0196052009
1. Pankaj Gulati
2. Amit Gulati
both sons of late Sh. S. C. Gulati,
R/o 204, Sant Nagar, East of Kailash,
New Delhi 110006. ... Appellants.
Versus
1. Varsha Mehra
w/o Sh. I. S. Mehra,
R/o 12, Alipur Road,
Civil Lines, Delhi 110054
2. Mr. Atul Gulati,
3. Ms Lucki Girotra,
4. Rosy Matta
5. Pooja Gulati
present address of respondent no. 2 to 5 are not known.
... Respondents.
Instituted on: 14.07.2009
Judgment reserved on: 21.10.2011
Judgment pronounced on : 09.11.2011
ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 1 of 21
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Control Act (hereinafter referred to as the "DRC Act") has been filed against judgment dated 27.05.2009 passed by Sh. Sandeep Yadav, Rent Controller (South) in proceedings pertaining to eviction petition registered as E134/2008(2005) whereby the prayer for an order of eviction against the appellants was granted in favour of respondent no.1 on the ground under Section 14(1)(g) DRC Act.
2. On notice, the respondent no.1 has appeared to contest the appeal. The other respondents are successorsininterest of Sh. Subhash Chander Gulati, the original tenant, through whom the appellants also claim interest in the tenancy. The appellants and respondents no.2 to 5 were, in fact, on the same side of array of parties in the capacity of the respondents in the proceedings which were contested primarily by the appellants. It appears the said other respondents have not shown any interest after the impugned judgment and, therefore, have not appeared before this court.
3. The tenanted premises is described as shop no. 12, Defence Colony market, New Delhi and is more specifically depicted in ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 2 of 21 the site plan which was filed with the eviction petition as Ex. AW 1/6. The shop comprises of a room and a store and open courtyard with toilet on the rear side built over a plot of land ad measuring 87 square yards. In the submissions of the appellants, the open court yard is used with the help of a temporary coverage/tent wherein the office of Gas Distribution Agency functions, the front portion being used as showroom for the garments business and the middle portion as office space.
4. The relationship of landlord and tenant between the respondent no.1 and the appellants is not disputed. It is admitted that the tenanted premises was let out for commercial purposes at the rent of Rs. 225/ per month vide lease deed dated 30.11.1958. The copy of the lease deed Ex. AW 1/2 has been proved during the trial of the case before the Rent Controller. Reference has been made in the petition to clause 14 which is also sought to be invoked by the appellants. The same reads as follows: "That the Lessee shall have no objection and shall not obstruct if and when the Lessor wants any constructions of residential or business flats, etc. to be made on the upper floor of the demised premises ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 3 of 21 and shall have no right in anyway to use and occupation of those premises and will allow the Lessor, his Agents and Workers to enter upon the premises for such construction, etc. without causing any disturbance or obstruction in the business of the Lessee. The passage to the first floor is for the exclusive of the occupants of the first floor and not the Lessee and as such, no obstruction can be caused by the Lessee."
5. The respondent no.1 moved the eviction petition on 24.09.2005, interalia, claiming that the premises was required bonafide for purposes of building or rebuilding by making substantial additions and alterations which work could not be carried out without it being vacated. It was pleaded that the proposed re construction would not radically alter the purpose for which the premises were let out and the plans for construction had already been properly prepared and necessary funds were available with the landlady. In this context, it was further pleaded that the shop is situate in Defence Colony market which was constructed more than 50 years ago only up to the ground floor level. It was stated that, over the years, the first floor and second floors had been constructed on nearly all of ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 4 of 21 the adjacent plots in the market so as to cater to the increasing population pressure and the demand for commercial space. The landlady would also claim that the basements had also been permitted and had come to be constructed in the market area.
6. It appears the landlady had earlier submitted plans for construction for creating basement floor along with construction of the first and second floor of the property but her proposal was rejected by Municipal Corporation of Delhi (MCD) on account of some unauthrised construction carried out by the tenant. In that context, a writ petition was filed by the landlord in the Hon'ble High Court and pursuant to orders passed therein, the unauthorised construction was removed and eventually in the wake of the said developments, MCD sanctioned the plans for construction of basement, ground floor, first floor and second floor.
7. The landlord also claimed in the petition for eviction to be armed with a supplementary lease deed executed by the Land & Development Office ( L&DO) of the Government of India, whereunder entire property could be used for commercial purposes. According to her, she required to carry out such works not only to generate additional income by way of rent but ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 5 of 21 also for commencing her own trade/vocation with the help of her daughterinlaw who had been in the garment industry for last several years and was keen to set up such business in the re developed property. The landlady further claimed need to fully exploit the property so as to create more space to cater to the demands in the prime market.
8. The petition was resisted by the appellants through written statement dated 07.04.2006 in which the claim of the landlady for bonafide need for rebuilding was disputed. It was claimed that the actual tenant was M/s Standard Stores of which the appellants no.1 and 3 were only partners. Since the said firm has not been impleaded, the petition was claimed to be bad for nonjoinder /misjoinder. It was claimed that the landlady was not the owner of the property. No notice had been issued prior to filing of the petition which was in the nature of the abuse of the process of law, actuated by the intent to use the property for commercial purposes against the norms enforced by the MCD for residential user of the portions on the first and second floor. It was claimed that the estimates of the expenditure liable to be incurred, as obtained from the architect, were false and frivolous. The proposed construction would require funds to the ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 6 of 21 tune of Rs. Forty lacs for which there was no proof of availability.
9. According to the appellants no.1 and 2, the proposed construction/rebuilding would radically change and alter the premises rendering it unfit for use for the purpose for which they had been let out.
10.The appellants also claimed that during the period of their use of the tenanted premises, they had incurred expenditure to improve upon the interior and exterior of the tenanted portion to make it in tune with newage shops as per prevalent practice of the market. The appellants would question the motive behind the plans for reconstruction claiming such work would cause undue hardship to them resulting in losses which could not be compensated. The objection was taken on the ground that the proper course was for a petition under Section 23 DRC Act to be filed which has not been pursued. The appellants further claimed that the motive of landlady was to permanently evict the tenant as there was no undertaking in the petition to put the tenant in the property after redevelopment in terms of Section 20(3) DRC Act. According to the appellants, it was responsibility of the landlady to intimate the proposed shop in ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 7 of 21 the Defence Colony market where the landlady intended to accommodate the tenant during the period of rebuilding.
11.The appellants would claim the petition was based on false statements, misrepresentations and ulterior designs and that provision of Section 14(1)(g) DRC Act was not applicable to the premises in question which are basically for the purposes of use as a shop.
12.The respondents no. 3 to 6 who are successorsininterest of the original tenant chose not to appear in the proceedings before the ARC.
13.The petition was put to trial. Evidence was led by both sides.
14.After the evidence had been closed, the learned ARC heard arguments and thereafter passed the impugned judgment decreeing the petition in favour of the respondent no.1.
15.It appears from the impugned judgment that during the course of hearing, it was submitted on behalf of the appellants that they would elect to be placed in occupation of the demised premises after rebuilding, in terms of Section 20 of DRC Act. In this view, the Rent Controller directed the tenants to hand over the vacant possession of the shop to the respondent no.1 within a period of two months from the date of the order, i.e. on or ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 8 of 21 before 27.09.2009. The landlord was directed to complete the construction within 10 months of receiving the vacant possession from the tenant and thereafter place the appellants in occupation of the basement on agreed rent or on standard rent to be determined by the court of Rent Controller.
16.The appeal was preferred with some delay and, therefore, along with an application under Section 5 of Limitation Act for condonation.
17.The prayer for condonation of delay was granted vide order dated 14.07.2009. On the same day, on the application for stay of the impugned judgment being pressed, an undertaking was submitted on behalf of the respondent no.1 not to execute the impugned order till the disposal of the appeal. My learned predecessor directed vide his order dated 4.07.2009 that the respondent no.1 shall remain bound by the said undertaking.
18.I have heard Sh. Shivinder Chopra, advocate for the appellants and Sh. Sanjeev Sindhwani, advocate for the respondent no.1 at length. I have gone through the trial court record.
19.As before the Rent Controller, objection based on the provision of Section 23 of DRC Act was vociferously submitted at the out set on behalf of the appellants. It was argued that the ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 9 of 21 objective of creating additional space required the landlord to pursue the course of action available under Section 23 DRC Act rather than under Section 14(1)(g) DRC Act. The submission is that the landlady had chosen to file petition under Section 14(1)
(g) DRC Act only to cause undue harassment and hardship to the tenant so as to force them out on permanent basis. In the submission of the appellants, the additional construction at the basement, first floor and second floor can be created which would be in the nature of improvements within the meaning of Section 23 DRC Act without the tenant being vacated even temporarily and that whatever disturbance was to be caused on account of such work could have been suitably compensated. It is the submission of the tenants/appellants that the building plans had been designed and got approved from the MCD intentionally in such a manner as to result in space available to the tenant being reduced at the ground floor level, on account of two stairs on both side, one going down into the basement and other leading up to first and second floor portions. It has been argued that in the name of being reinducted in the demised premises after rebuilding the basement floor has been offered which is not fair as it would result in space available in the ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 10 of 21 tenancy being shortened on account of stair case running within the ground floor.
20. Section 23 DRC Act reads as under: "23. Permission to construct additional structure. Where the landlord proposes to make any improvement in, or construct any additional structure on, any building which has been let to a tenant and the tenant refuses to allow the landlord to make such improvement or construct such additional structure and the Controller, on an application made to him in this behalf by the landlord, is satisfied that the landlord is ready and willing to commence the work and that such work will not cause any undue hardship to the tenant, the Controller may permit the landlord to do such work and may make such other orders as he thinks fit in the circumstances of the case."
21.Section 14(1)(g) DRC Act, on the other hand, reads as under: "that the premises are required bona fide by the landlord for the purpose of building or re building or making thereto any substantial additions or alterations and that such building or rebuilding or addition or alteration cannot be carried out without the premises being vacated,"
22. Section 14(1)(g) is subject to proviso contained in Section ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 11 of 21 14(8) which reads as under: "14(8) No order for the recovery or possession of any premises shall be made on the ground specified in clause (g) of the proviso to 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 such ramedical alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary fund for the purpose are available with the landlord.
23.In my considered view, the provisions of Section 14(1)(g) and Section 23 DRC Act operate in different spheres. The landlord has pleaded and proved on record that basement floors have been created in the adjacent properties of the market. She has also proved on record that the creation of basement is not only permissible under the Building bye laws but also has been sanctioned by the MCD on her request. She has expressed her intention to fully and properly exploit the property to her utmost advantage. It cannot be denied that rebuilding in the nature proposed and sanctioned by MCD will result in further additional space being created. If the basement was also to be added. the advantages flowing from such additional space not ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 12 of 21 only to the landlord but also to the neighbourhood cannot be denied or grudged. When the landlord intends to rebuild the property by bringing about substantial additions/alternations in the nature as proposed in the case at hand, his bonafides need not be doubted, unless the tenant is able to show some ulterior motive based on some credible material. Mere sayso of the tenant that the intention of the landlady was actuated by malice is not sufficient. The landlady, of course, can succeed under Section 14(1)(g) DRC Act only if she satisfies the requirements of the said provision of law which are subject to further restrictions contained under Section 14(8) DRC Act. The creation of the basement is one such work which cannot be undertaken without the premises being vacated by the tenant at the ground floor portion. The nature of the work proposed here is undoubtedly that of rebuilding in as much as it requires not only the ground to be dug out but also the upper floors being added thereto.
24.From the above viewpoint, it is not a case of mere additional structure being created over and above the tenanted portion or in the nature of just improvements. It is, undoubtedly, a case of rebuilding. Reliance on clause 14 of the lease deed Ex. AW ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 13 of 21 1/2 (extracted above) is of no assistance to the appellants as construction visualized at that stage did not include a basement being created. Therefore, reference to Section 23 DRC Act is not proper. Objection of the appellants to this effect is, thus, rejected.
25.The plea that the actual tenant was M/s Standard Stores is not believable in the face of the lease deed Ex. AW 1/2 which clearly shows that the tenant inducted was Mr. Subhash Chander Gulati, the predecessorininterest of the appellants and not a firm. This also repels the objection on the ground of non joinder/misjoinder.
26.It is admitted case of the appellants that the premises was let out vide Ex. AW 1/2 by Mrs. Indrani Radha Saran. The evidence of AW1 through Ex. AW 1/A affirming that he is the son of said landlady who has since died and thereafter the property has been mutated in the name of the respondent no.1 (the petitioner before the Rent Controller), interalia, vide supplemental lease deed Ex. AW 1/4 followed by Conveyance Deed Ex. AW 1/5 has gone unrebutted. In these circumstances, the denial of ownership of the property or status of the petitioner as the landlady is not proper.
ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 14 of 21
27.The premises in question is essentially a shop built in a market place. It appears the norms now permit the additional construction on the upper floors to be used for residential purposes as well. The MCD having sanctioned the plans permitting construction to be carried out on these lines, wherein the ground floor portion would still remain one meant for commercial use, in addition to the basement also being created as commercial space, the argument that the proposed construction/rebuilding would radically alter the premises within the meaning of the proviso contained in Section 14(8) of DRC Act is without merit.
28.A petition for an order of eviction under Section 14(1)(g) of DRC Act does not require a prior notice to be given by the landlord to the tenant. There is no requirement of law making it incumbent on the landlord to make alternative arrangement for the tenant to be accommodated during the period of rebuilding. The only requirement of law is for the Rent Controller to call upon the tenant to "elect" under Section 20. In these circumstances, the objections of the appellants about want of notice or alternative arrangement are frivolous.
29.The respondent no.1 led evidence on the basis of a estimate ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 15 of 21 prepared indicating the level expenditure required to be incurred. She has proved to the satisfaction of the Rent Controller that she is in possession of necessary funds for such purposes. This essentially is a finding of fact which cannot be brought in question under the amended provision of Section 38 of DRC Act. Even otherwise, I find the satisfaction recorded by the Rent Controller in this regard to be based on correct appreciation of the evidence led and therefore not perverse.
30.Since the respondent no.1 has not shown any reluctance to facilitate the tenant to be placed in occupation of a portion of the building to be reconstructed, pursuant to he having elected to be so reinducted in terms of Section 20 of DRC Act, I do not find any substance in the plea that the petition was actuated with an ulterior motive to throw out the tenant permanently.
31.The next submission on behalf of the appellant is that the sanctioned plans on basis of which the impugned judgment was passed have since become invalid and, therefore, in absence of revalidation, the impugned order ought not be sustained.
32.I do not think the landlady can be made to suffer on account of the validity of the sanctioned plans having come to an end on account of the construction on their basis having not ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 16 of 21 commenced within the prescribed period for the simple reason such works could not have been undertaken by the landlady without the tenant making way for such purposes. With the tenant continuing to hold the possession, construction in the nature of rebuilding is virtually impossible, what with such works including the earth to be dug out for a basement to be added. The appeal having been filed against the impugned judgment, the landlady chose to be patient and let the legal proceedings run their course. The plans have been sanctioned. This itself shows that proper plans have been prepared within the meaning of Section 14(8) of DRC Act. It is only that the sanctioned plans would require to be revalidated for commencement of the construction to be carried on. The landlady cannot be brought into a vicious circle wherein she would first be called upon to get the plans revalidated and then come and press to the court for the eviction order to be passed.
33.In the case titled as Harrington House School Vs. S. m. Ispahani & anr. AIR 2002 Supreme Court 2268, the facts were that the landlords needed the suit premises for immediate purpose of demolition so as to construct a multistorey complex theatre as the existing building was 50 years old. The plans of ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 17 of 21 the proposed construction were ready but had not been submitted to the local authority for approval. The explanation given by the landlords was that a substantial amount was charged by the local authority by way of fee for sanctioning the plans for reconstruction and if the reconstruction was not carried out within a limited time, the sanction had to be kept renewed periodically for which the local authority would again charge a substantial amount by way of renewal fee. As the phenomenal delay in disposal of litigation entailed heavy financial burden on the landlord, he had not submitted the plans for approval though they were ready.
34.In these circumstances, Hon'ble Supreme Court held that a procedure can be devised to protect the interests of both the tenant and the landlord, specially by taking care of apprehension expressed by the tenant that the property may remain lying unreconstructed in spite of being vacated by the tenant and followed by demolition if the plans for proposed reconstruction are not sanctioned by the local authority. It was held by the Hon'ble Supreme Court that decree of eviction passed by the High Court was to be sustained but a condition was added that the landlords shall submit the plans of ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 18 of 21 reconstruction for the approval of the local authority. Only on the plans being sanctioned by the local authority, the decree of eviction would be available for execution. Such sanctioned or approved plans were to be produced before the executing court whereupon the executing court was to allow a reasonable time to the tenant for vacating the property and delivering possession to the landlorddecree holders.
35. The facts and circumstances of the case at hand call for similar arrangement. Ordered accordingly.
36. The final submissions of the appellants are that it was not proper on the part of the Rent Controller to direct the appellants to be put in possession of the basement floor since such portion would be dissimilar to the tenanted portion held by them at the ground floor. It is further their grievance that the portion being offered at the ground floor would be lesser in size then the one held at the ground floor, on account of being stair cases added. They also submit grievance that the Rent Controller has indicated in the impugned judgdment that he might be fixing standard rent for such space in which the tenants are to be re inducted. This, according to them, is not envisaged in the provisions governing such petitions as under Section 14(1)(g) of ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 19 of 21 DRC Act.
37.I do not find the above grievances to be just, reasonable, fair or proper. The building plans have been prepared by architects on the basis of the building byelaws and with the objective of optimum utilization of space. Since the ground floor portion to be created would be even more constricted in space and not permit to the tenant the requisite exclusivity and since the landlady would require access to the upper floor through the ground floor, there is nothing wrong in the basement being offered for reinduction to the tenant. The Rent Controller, conscious of the reduction in the floor area for the use of the tenants has thus rightly reserved his jurisdiction to determine the rent payable by the tenant after reinduction, in which exercise he would undoubtedly be guided by the provisions of DRC Act on the subject of standard rent. As an alternative, the Rent Controller has given the liberty to the parties to choose the existing agreed rent as the terms of tenancy. I endorse the view of the Rent Controller.
38.Thus, the appeal is found devoid of merits and is dismissed, though with the rider that the order of eviction shall be put into execution, requiring the tenant to give up the possession ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 20 of 21 temporarily for purposes of reconstruction, only upon the landlady showing to the satisfaction of the executing court that she has obtained revalidation of the building plans from the concerned authorities. For such purposes the landlady shall approach the executing court after informing the tenant in writing at the suit premises, with advance copy of the application to be moved. In the event of the Rent Controller recording satisfaction, the appellants would stand directed to hand over the vacant possession of the suit premises within two months thereof and the respondent no.1, in turn will be duty bound to complete the construction within 10 months of receiving the vacant possession.
39.Trial court record be returned with a copy of this judgment.
40. File of the appeal be consigned to Record Room. Announced in open Court today on this 09th day of November, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
ARCT No. 27/09 Pankaj Gulati & anr. Vs. Varsha Mehra & anr. 21 of 21