Delhi District Court
Raj Nath Gupta vs Kamal Roy Ors on 20 September, 2024
RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors
IN THE COURT OF MS. ARJINDER KAUR,
ADDITIONAL RENT CONTROLLER-2 (CENTRAL),
TIS HAZARI COURTS, DELHI.
ARC No: 79728/2016
Sh. Raj Nath Gupta
S/o Late Sh. Mussadi lal Gupta,
R/o 53/59, Ramjas Road, Karol Bagh.
New Delhi-110005
.....Petitioner
VERSUS
1. Sh. Kamal Roy,
S/o Sh. S.S Lal,
R/o E-171 (Second floor), Kamla Nagar,
Delhi-110007.
2. Sh. Chander Mohan
S/o Sh. S.S Lal,
R/o E-171 (Ground floor), Kamla Nagar,
Delhi-110007.
3.Anil Kumar
S/o Sh. S.S Lal,
R/o House No. 943,
Dr Mukerjee Nagar,
Delhi.
....Respondents
***********
Date of Filing of petition : 27.05.2014
Date of reserving judgment : 20.09.2024
Date of pronouncement of Judgment : 20.09.2024
Decision of petition : Dismissed
Page no.1-13
(Arjinder Kaur)
ARC-02 (Central), THC,
20.09.2024
RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors
JUDGMENT
1. Present petition has been filed under Section 14 (1) (j) read with section 25 (B) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') for eviction of the respondent in respect of property bearing no.E-171 (Municipal No. 6874, Second floor, Kamla Nagar, Delhi-110007 which is shown in red colour of the site plan attached (hereinafter referred to as 'tenanted shop').
THE PETITION
2. It is stated in the petition that respondent/tenants have carried out structural additions and alteration in the suit premises without the consent /written consent of the petitioner. That respondents have scrapped the walls of the premises and diminished their thickness in order to widen the size of the room in their occupation. That partition wall in the premises have also been removed and readjusted at different places for changing the size of the room according to the suitability and convenience of the respondents. That respondents have constructed walls at the places where the load bearing walls possibly could have been erected. That respondents have changed the shape of whole property. That illegal /unauthorized construction/addition and alterations as carried out by the respondents have been shown in yellow colour in the plan and respondent no. 1 have caused serious/substantial damage to the premises without consent /permission and knowledge of the petitioner. Thus, the eviction of respondents from the suit premises in terms of provisions of section 14 (1) (j) of DRC Act has been Page no.2-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors prayed for.
THE WRITTEN STATEMENT
3. Respondent in their written statement stated that present petition is wrong, false and denied. That it is denied that the respondents have constructed walls at the places where the load bearing walls should not have been and /or possibly could not have been erected. It is further denied that even the windows or doors have also been removed or affixed at different places by the respondents to their own suitability. It is denied that the respondents have changed the shape of the whole of the property. That the open court yard at first floor has also been covered by the respondents or balcony have been added in the living area or carrying out of such huge change/structural addition or alterations in the premises by the respondents has resulted in causing damages/severe damage to the premises. It is further denied that the structural stability of the building have been diminished or because of the unauthorized constructions raised by the respondents and additions or alteration made by the respondents, the building is likely to fall down at any time. It is denied that the said construction/additions or altercations have been made by the respondents unauthorizedly without the consent and permission of the petitioner or even without permission of the MCD. It is stated that neither the respondent no. 1 has carried out any repair in the suit premises nor carried out any structural changes in any manner which violates the provision of DRC Act or DMC Act. Rest of the contentions of the petition have been denied in toto and dismissal of the present petition has been prayed for.
Page no.3-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors REPLICATION
4. Replication/ rejoinder was filed on behalf of the petitioner to the written statement of the respondents, wherein the averments made in the petition have been reiterated whereas the defence taken by the respondents in the written statement was vehemently denied as false.
EVIDENCE OF PETITIONER
5. The petitioner Sh.Raj Nath has examined himself as PW-1 and tendered evidence by way of affidavit vide Ex. PW1/A and relied upon the documents Ex. PW1/1 and Ex. PW1/2.
5.1 Vide order dated 18.11.2016, evidence on behalf of petitioner was closed in affirmative.
EVIDENCE OF RESPONDENT
6. Vide order dated 08.11.2016, evidence of the respondent was closed as respondent did not wish to lead evidence.
ARGUMENTS
7. I have heard the arguments at length. I have also carefully gone through the testimonies of the witnesses, documents and material on record and case law relied upon.
THE LAW LAW ON SEC. 14(1) (j) D.R.C. ACT:-
8. It is expedient to reproduce the relevant provision of Delhi Rent Control Act so that position may be crystal clear:-
"Section-14 (j) - that the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises;
Page no.4-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors
9. In the case titled as Shakuntla Devi Vs Avtar Singh 113(2004) DLT 424, the Hon'ble Delhi High Court observed that:-
"6. Having analysed the reasonings of the courts below, I am of the view that the very fact that the tenant-respondent has punctured the weight- bearing walls of the premises in question and created additional space for himself by way of parchhati equivalent to the floor area, admits of increase of weight on the load-bearing walls and certainly can be said to have caused substantial damage to the premises in question. The tenant can not damage the walls, erect additional space and yet claim that no substantial damage has been caused to the premises in question. Structural change which brings about additional load on the existing load bearing walls, is substantial damage to the premises in question. It is not necessary that the walls must crumble under additional weight to bring the mischief of the tenant under Section 14(1) (j) of the Act. Suffice to say in the facts and circumstances of the present case where the tenant has punctured holes into the walls created additional space by erecting a parchhati equivalent to the floor area of the room in question and is using the same for either storage of goods and/or residence purposes, would come within the mischief of Section 14(1)(j) of the Act. The tenant is not permitted to make any changes/alterations so as to increase load on the walls which are otherwise designed to hold the structure as was let out to the tenant".
10. In the case titled as Suraj Parkash Sawhney Vs Bhagat Ram passed in S.A.O.No.328-D of 1964, the Hon'ble Punjab and Haryana High Court observed that:-
Page no.5-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors "Sub-Section (10)has been introduced as a corollary to clause
(j) of the proviso to sub- section(1), and it is provided that in cases where the tenant caused a substantial damage to the demised premises the Controller may direct the tenant to carry out repairs to the damage caused to his (the Controller's) satisfaction or to pay such amount by way of compensation as the Controller may direct. The sub-section has been enacted to grant relief to the tenant causing substantial damage to the demised premises in case he is prepared to undo the damage caused by him. Sub-section (10), however, does not make it imperative for the Controller to give a choice to the tenant either to repair the damage or to pay the compensation. It would in my view, depend upon the circumstances of each case for the Controller to decide as to whether he should make an order calling upon the tenant to repair the damages or to pay an amount by way of compensation and to mould his directions accordingly. The Controller is vested with a discretion in the matter which must be exercised judicially looking to the facts of each case, and it is for the Controller to decide as to what type of order contemplated by sub-section (10) should be made by him. In a case like the present if the order were not for the construction of the intervening wall but only for payment of a paltry compensation of Rs.200/- which would, according to Mr. Hardy, be the cost of constructing the wall, there would always be a danger of the entire building falls down because of the demolition of the wall which was supporting roof. The payment of compensation in a case like the present wall hardly be the proper relief and as such the Additional Controller and Tribunal were in my opinion fully justified in direct the tenant construct the intervening wall in case he wanted to avoid his Page no.6-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors eviction in Appeal No.328-D of 1964 is consequently dismissed."
11. In the case titled as Suraj Parkash Chopra Raj kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645, the Hon'ble High Court of Delhi observed as under :-
"(i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord
(ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant;
(iii) tenant has made his construction without the consent of landlord;
(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises;
(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out;
(vi) landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;
(vii) an eviction order under Clause (j) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises;
(viii) every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of Page no.7-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors the building either from commercial and monetary point of view or from utilisation aspect of the building;
(ix) a temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;
(x) every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and that each case would depend upon its own facts; and
(xi) the impairment of the value and utility of the building is to be seen from the point of view of the landlord and not tenant."
REASONING & ANALYSIS
12. Let us discuss the ingredients of Section 14 (1) (j) of DRC Act one by one as applicable to present facts and circumstances.
13. Petitioner deposed as PW1 through his affidavit that the petitioner is the landlord of the suit property i.e the second floor of House No.E-171, Kamla Nagar, Delhi. That the father of the respondents i.e. Sh.S.S.Lal, was inducted as a tenant in respect of the suit premises i.e. the second floor of House No.E-171, Kamla Nagar, Delhi, under the petitioner but later on, after his death the tenancy rights returned upon his three sons Sh.Kamal Roy (Respondent No.1) Sh.Chander Mohan (Respondent No.2) and Sh.Anil Kumar (Respondent No.3) so all of them became tenants qua the suit premises under the petitioner. However, at the time of filing of the suit /petition the respondent No.1 Sh.Kamal Roy alone was in occupation of the suit premises and was living there alongwith the members of his Page no.8-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors family as per the knowledge of the petitioner. Petitioner further deposed that the premises, as originally let out by the petitioner to the father of the respondents consisted of two bed rooms, one drawing room, kitchen, bathroom/ toilet, balcony on the second floor of the property bearing No.E- 171, Kamla Nagar, Delhi, as shown in red color in the plan enclosed with the petition as originally filed. The same is Ex. PW-1/1. That later on, since the respondent No.1 Sh.Kamal Roy, who is in occupation of the suit premises was not allowing the petitioner to visit/enter the premises in his occupation, so an appropriate application was filed before this Hon'ble court for passing an order, for directing the respondents to allow the petitioner along with his authorized representative and a Draftsman or Architect to visit the suit premises and to prepare plan etc. which was allowed by this Hon'ble court, so in compliance to the order of the Hon'ble court, the premises was inspected on 12.09.2013. That at the time of inspection of the premises, it revealed that the respondents had changed the entire structure of the premises, which has resulted in causing substantial damage to the premises and had also caused substantial damage to the open roof of the second floor i.e. third floor of the premises by raising total unauthorized construction thereon by digging the floor. The premises now in occupation of the respondents (where the respondent No.1 is now residing) after raising unauthorized constructions and making structural changes and additions and alterations having been made including raising of unauthorized constructions on the third flooг/ open terrace has been shown in the plan in Yellow and red color filed alongwith the amended Page no.9-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors petition, which is Ex. PW-1/2. That the respondents have carried out structural additions and alterations in the suit premises, without the consent/written consent of the petitioner. The Respondents have scrapped the walls of the premises and diminished their thickness in order to widen/enhance the size of the rooms of the premises in their/his occupation. Besides this, the partition walls in the premises have also been removed and readjusted at different places for changing the size of the rooms according to the suitability and convenience of the respondents. That the respondents in this process have also constructed the walls at the places where the load bearing walls should not have been or possibly could not have been erected, as the same has been erected at the places where there are no load bearing walls below the same, in addition to it, even the windows and doors have also been removed as it originally existed and fixed at different places by the respondents as per their own suitability. In fact the respondents have changed the shape of the whole of the premises as originally let out by the petitioner to the father of the respondents. Not only this, even the open court yard has also been covered by the respondents and balcony existing on second floor, has been added in the living room.
13.1 However, during his cross examination as PW1, the petitioner stated that the suit property was constructed upon a piece of vacant land which was purchased by his father. PW1 further stated that the property was constructed by his father and elder brother between the year 1945 to 1948. Further he deposed that site plan of portion which was let out to Sh.
Page no.10-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors S.S Lal, the father of the respondent was in existence, which was a blue print got prepared by his father and elder brother prior to 1945 for the purpose of constructions of building. However, no such site plan has been placed on record by the petitioner. Petitioner further deposed that site plan of the property might have been filed in the corporation after completion of building but since he was minor at that time he has no knowledge. PW1 further deposed that property was constructed prior to 1950 when he was 14 years old and the property was constructed ground floor, first floor and second floor after sanction of the corporation authority. However, no such site plan has been placed by the petitioner nor any record have been summoned from concerned authority to bring such site plan. Petitioner has also deposed that in his cross examination that he never ever resided in the suit property and since his birth he has been residing 3565, Kucha Daya Ram, Chawri Bazar, Delhi -06 till 1968 and thereafter shifted to Ramjas Road, Karol Bagh, New Delhi. Petitioner clearly admitted that he has no personal knowledge about the original structure of the property and site plan thereof.
13.2 Further, according to PW1, the property was let out to father of respondent by the petitioner in 1965 and at that time rent agreement was executed but according to the petitioner same is not traceable and hence not filed on judicial record.
13.3 PW1 also deposed that litigation in respect of recovery of rent was arrived with Sh. Shiv Sharan Lal, father of respondent in respect to the property in dispute. Litigation against Shiv Sharan Lal was for not paying Page no.11-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors rent. He further deposed that no site plan was filed with said litigation as there is no necessity to file the site plan. He further stated that no other litigation took place between parties except recovery of rent of the present eviction. PW1 further deposed that he became owner of the property bearing no. 171 E, Kamla Nagar by way of partition with his brothers. He further deposed he does not remember whether any site plan was prepared to that effect.
13.4 Thus, perusal of testimony and cross examination of PW1 clearly shows that the petitioner failed to prove what was situation of property when it was out to respondent and failed to prove that the respondent has caused substantial damage which has diminish the utility of building since it is settled law that all the alteration and addition in the premises are not substantial damage and burden to prove is always of landlord and prove that addition or alteration has caused substantial damages.
13.5 This Court is of the considered view, the petitioners have not been able to fulfil the requirements as formulated by the Hon'ble High Court of Delhi in case titled as Suraj Parkash Chopra Raj Kumar vs Baij Nath Dhawan and Anr. 2003 III AD Delhi 705, 103 (2003) DLT 645.
13.6 In view of the discussion and well settled law, the Petitioners has miserably failed to satisfy the parameters of substantial damages as formulated by Hon'ble High Court.
Page no.12-13 (Arjinder Kaur) ARC-02 (Central), THC, 20.09.2024 RC ARC No. 79728/2016 Raj Nath Gupta Vs. Kamal Roy & ors 13.7 As such, petitioner has failed to satisfy the ingredients of section 14(1)(j) of DRC Act.
CONCLUSION
14. In view of the aforesaid discussion and settled proposition of law, eviction petition filed by petitioner against the respondent under section 14 (1) (j) of the DRC Act stands dismissed.
15. File be consigned to Record Room after due compliance.
Digitally
signed by
ARJINDER
Announced in the open Court ARJINDER KAUR
KAUR Date:
on 20.09.2024 2024.09.20
13:10:25
+0530
(Arjinder Kaur)
Additional Rent Controller,
Central District, THC, Delhi
Page no.13-13
(Arjinder Kaur)
ARC-02 (Central), THC,
20.09.2024