Delhi District Court
Sh. Raj Kumar Jain vs Sh. Suresh Kumar Jain on 26 September, 2018
In the Court of CCJ cum ARC, Pilot Court (Central District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Susheel Bala Dagar
Case No. E487/17
U. ID No. 568/17
In the matter of :
1. Sh. Raj Kumar Jain
2. Sh. Naveen Kumar Jain
3. Sh. Praveen Kumar Jain
All sons of Late Sh. Jindass Jain
All R/o House No. I129, Ashok Vihar,
PhaseI, Delhi110052 ...........Petitioners
Versus
Sh. Suresh Kumar Jain
S/o Late Sh. Moti Lal Jain,
R/o House No. 7057, First Floor,
Gali Tej Singh, Ghas Mandi,
Pahari Dhiraj, Delhi110006. ...........Respondent
Date of institution : 04.07.2017 Date of reserved for judgment : 07.09.2018 Date of judgment : 26.09.2018 Decision : Dismissed as rejected JUDGMENT :
1. An eviction petition has been filed by the petitioner Lalit Kumar Aggarwal against the respondent Sandeep Gupta for vacation of the tenanted premises, i.e., two rooms at the first floor of property bearing Municipal/House No. 7057, Gali Tej Singh, Ghas Mandi, Pahari Dhiraj, Delhi, as shown in colour red in the site plan annexed as well as unauthorized encroached portion more particularly shown in yellow colour in the site plan attached alongwith the petition, on the ground of E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 1 of 24 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 petitioners is that the suit building bearing No. 7057 in Ward No. XIV, Gali Tej Singh, Ghas Mandi, Pahari Dhiraj, Delhi110006, measuring about 84 sq. yds is a three storey building as shown in the site plan attached with the petition. The father of the petitioners Late Sh. Jindass was the tenant in respect of some portion of the suit building under the previous ownerlandlord. The respondent was also a tenant in some other portion of the suit building under the said previous ownerlandlord. There was one more tenant Sh. Anil Kumar Jain in other portion of the suit building under the said previous owner landlord. The said tenant Sh. Anil Kumar Jain died and now his widow and son are in possession of the tenanted premises of said Sh. Anil Kumar Jain. Late father of the petitioners, Sh. Jindass was running a manufacturing unit of Hosiery Items in his tenanted premises. The petitioners were also running their separate small units of Hosiery manufacturing each in different small portions of said tenanted premises of their father since the year 1996 approx. Late Sh. Jindass closed his unit of manufacturing of Hosiery Items sometime in the year 1978, but petitioners started running their respective manufacturing unit of Hosiery Items. Father of the petitioner Sh. Jindass died on 27.11.2003.
3. The petitioners purchased the entire suit building from the previous ownerslandlord, i.e., Manish Kumar, Deepak Kumar, Virendra Kumar Jain, Special attorney of Arun Jain, Vineet Jain vide registered Sale Deed E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 2 of 24 dated 19.05.2011. Since the year 2010 and after the purchase of the suit property by the petitioners, lady family members of both the abovesaid tenants started making false complaints against the petitioners in local police station in respect of Criminal Offences related to women. Due to said complaints, the petitioners had to close their respective manufacturing units of hosiery items sometime in the year 2012 and put their locks in the portion of the suit property in their possession, as shown in green colour in the site plan and stopped coming to the suit property. As such, the petitioners became unemployed since the year 2012.
4. Even the son of petitioner no. 1 who is now 24 years of age is unemployed and of marriageable age but due to his unemployment, the petitioner is unable to get married his son. Thus, the petitioner wants to restart their respective manufacturing units of hosiery items in which petitioner no. 1 will also engage his said 24 years old son with him, which is not possible now in the portion of suit property under possession of the petitioners after the unauthorized encroachments, unauthorized construction, etc. made by the respondent and other tenants sometime in the year 2012 and onward. The area of Gali Tej Singh, Ghas Mandi, Pahari Dhiraj, Delhi is an old hosiery items manufacturing and selling area. There are number of manufacturing units of hosiery items running in the entire Pahari Dhiraj area.
5. Further, it is averred by the petitioners that earlier also they have filed an eviction petition u/s 14 (1) (e) of the Act against the respondent but the previous counsel had twisted the entire facts due to which the E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 3 of 24 leave to defend application was allowed in the said petition. Thereafter, knowing about the said fact, the petitioners engaged a new counsel who advised the petitioner not to pursue further the said petition and accordingly, the same was dismissed for nonprosecution by the Ld. Predecessor of the Court.
On the above stated grounds, prayer is made for eviction of the respondent from the tenanted premises.
6. Summons were served upon the respondent, who appeared and filed leave to defend application, which was allowed vide order dated 24.10.2017 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 petitioners in the eviction petition stating that the necessary ingredients of Section 14(1)(e) DRC Act are not fulfilled / pleaded in the present petition.
7. The petitioners had earlier filed an eviction petition No. 440/2013 on 20.05.2013 against the respondent on four grounds under DRC Act i.e. 14 (1) (a) (c), (h) & (j). The petitioners chose to withdraw the petition, which was ultimately dismissed as withdrawn on 03.01.2017. The petitioners have not whispered a single word about their alleged bonafide requirement either in the previous petition or in evidence or even at the time of making statement before Court on 03.01.2017 for withdrawal of the previous petition no. E440/2013. The alleged bonafide requirement is an afterthought of the petitioners.
8. The petitioners have filed a similar petition u/s 14 (1) (e) of DRC E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 4 of 24 Act bearing no. E118/17 (regd. ID No. 104/2017) against the respondent in respect of the same tenanted premises thereby alleging that they require the tenanted premises for their residential purposes. After grant of leave, the respondent filed his written statement in the said petition no. E.118/2017 (regd. ID No. 104/2017).
9. The petitioners stopped appearing in the said petition and ultimately the said petition was dismissed for non prosecution vide order dated 08.05.2017. The petitioners have made false, frivolous and concocted allegations in the present petition. The said allegations are contradictory to the own averments of the petitioners pleaded in the previous petition No. E118/2017 (regd. I.D. No. 104/2017).
10. In the previous petition, the petitioners have alleged regarding alleged bonafide requirement for 'residential purposes', however, in the present case, the petitioners have alleged that they require the premises bonafidely for "commercial purposes". In both the previous petitions No. E440/2013 and No. E. 118/2017, the petitioners have claimed that the premises in question is "residential" in nature. However, in the present petition the petitioners have alleged in the petition that the premises in question are "residential cum commercial". The tenanted premises is situated on first floor of the property and the same was let out and being used since beginning for residential purposes which is shown in the site plan of the suit property also.
11. The petitioners have given wrong description of the tenanted premises, which is contradictory to their own pleading of the previous E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 5 of 24 petition no. E118/17. In the present petition, the petitioners have claimed the tenanted premises to be "Two rooms on the first floor, whereas, in the previous petition no. E118/17, the petitioners have claimed the tenanted premises to be "Two rooms, kitchen, bathroom and toilet on the first floor". The prayer clause of the present petition shows that the petitioners have claimed two rooms on first floor to be the "tenanted premises" and the remaining portion to be the "unauthorisedly encroached/ constructed / possessed" and sought the eviction from all the aforesaid portions. It is submitted that in case the petitioners claims the remaining portion (except two rooms) to be unauthorisedly constructed, possessed and encroached, then the present petition under DRC Act is not maintainable and the petitioners should have filed a civil suit for possession before the Civil Court. The present petition before Court in respect of two alleged separate portions is not maintainable and the same amounts to misjoinder of two different cause of actions.
12. The suit property is situated in a residential area where no commercial activities are allowed, i.e., running of factory etc., though, the shops of trading etc. are existing in the gali but those are on the ground floor only. Even in the past the petitioners were running their factory on the ground floor portion of the suit property without having any license/permission/sanction from the concerned authority and accordingly, the same was closed by the petitioners as per the orders of the Ld. SDM, Delhi. The petitioners have filed fabricated and forged bills. When the government declared the area to be a non confirming area, E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 6 of 24 then the petitioners were allotted an alternative plot measuring 400 sq. yds. i.e. plot no. A125, Wazirpur Industrial Area, Delhi, in lieu of their factory in the premises in question. The aforesaid plot was constructed by the petitioners upto three storeys and they are running their respective factories in the said plot no. A125. The petitioners have concealed this material fact.
13. In similar manner they concealed the material fact regarding property no. T300, Gali Tanki Wali, Pahari Dhiraj, Delhi in the previous petition no. E118/2017 also.
14. Further, it is submitted that the petitioners have alleged that they are jobless since the year 2012, however, the petitioners failed to place on record their income tax returns to support their aforesaid false claim. The petitioners have further failed to disclose as to what business they have been doing for their survival for the last 56 years i.e. since the year 2012.
15. The petitioners have started the litigations since after the purchase of their property in the year 2011, firstly they filed the Slum Petition against the respondent; then they filed petition no. 440/2013, thereafter they filed another petition for bonafide requirement i.e. petition no. E 118/2017 and now they have filed the present petition no. E487/2017 against the respondent. Similarly, the petitioners have filed a petition against the tenant of ground floor also in the past. It is hard to believe that the petitioners who claimed themselves to be jobless for the last 56 years, have been incurring the expenses for the abovesaid litigations by giving the fees of the advocates and also in other incidental expenses. The E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 7 of 24 allegations of the petitioners regarding their unemployment/ jobless status are false.
16. The respondent had objected to the illegal acts of the petitioners on the ground floor of the building in question where the petitioners were doing commercial activities without any sanction / permission by the concerned authority. The said illegal commercial activities were stopped by the SDM (Kotwali) on the complaint of the respondent, due to this reason, the petitioners are having illwill against the respondent and they are bent upon to get the respondent evicted from the tenanted premises.
17. The petitioners have filed the copy of alleged sale deed in their favour alongwith its annexed site plan. The petitioners have filed another false and incorrect site plan alongwith the main petition as Annexure A1 which does not show the actual accommodation at site. The perusal and comparison of both the site plans, i.e., site plan i.e. Annexure A1 and the site plan annexed with the sale deed shows that the petitioners have intentionally not shown the measurements of the rooms and portions available with them in the present property no. 7057. Moreover, the petitioners have falsely shown a room on the second floor portion to be the alleged 'Tin Shed'. It is submitted that the rooms and other portions on each floor of property no. 7057 are not being used by the petitioners and the same are lying vacant under their locks and keys. The petitioners are having sufficient accommodation for their residence as well as for any commercial purpose (though it is not allowed/ permitted as the property is situated in a residential / non conforming area) in the property in E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 8 of 24 question. The tenanted premises of the respondent is situated on the first floor of the property where no commercial work like manufacturing unit/ factory can be established as the same is not allowed/ permitted by law. Master Plan 2021 may be referred in this regard where each and every locality is separately demarcated for residential purposes, commercial activities and industrial activities. The recent electricity bill of the petitioners at the suit property shows that the same not in use. Due to the non user of any portion by the petitioners in this property, three electricity connections in the name of Shri Jindass Jain (Father of petitioners) (CA no. 100433719 and CA No. 100449843) and Shri Chunna Mal (earlier owner) (CA No. 100449829) have been disconnected in the last year.
18. The petitioners are having various reasonable and suitable accommodations at their disposal, details of which are as follows : i. Property no. I129, Ashok Vihar, PhaseI, Delhi110052, measuring 260 sq. yds., consisting of three storeys. ii. A flat in Sector8, Rohini, Delhi110085 in the name of petitioner no. 1 Sh. Raj Kumar Jain which is lying vacant/ without any use at the disposal of the petitioners.
iii. A plot in Bahadurgarh, Haryana, in the name of petitioner no. 1 Sh. Raj Kumar Jain.
iv. A flat in the area of Sant Nagar, Burari, Delhi in the name of petitioner no. 2 Sh. Naveen Kumar Jain, which is also lying vacant without any use.
v. A flat in the area of Bhajanpura, East Delhi in the name of E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 9 of 24 petitioner no. 3 Sh. Praveen Kumar Jain, which is also lying vacant/ without any use.
vi. Property No. T300, Gali Tanki Wali, Idgah Road, Ahata Kidara, Delhi110006 which is constructed upto four storeys. This property is situated in the same vicinity where the premises in question is situated. The ground floor of the said property is being used by brother of the petitioners, Sh. Ashok Kumar Jain and the remaining three upper floors are lying vacant at the disposal of the petitioners.
vii. Property no. A125, Wazirpur Industrial Area, Delhi, measuring 400 sq. yds. Constructed upto three storeys. The petitioners are already running their factory in this commercial property which was allotted to them in lieu of their factory.
19. The respondent is filing the complete and correct site plan of the entire property consisting of ground floor, first floor and second floor. The petitioners have concealed the accommodations which are available with them. The respondent has come to know that the petitioner no. 3 Shri Praveen Kumar Jain for self and also on behalf of all the petitioners contacted one property dealer of the area namely Shri Parmod Aggarwal S/o Shri Surender Aggarwal, Proprietor of M/s Ganpati Properties at 3628, Main Road, Bara Hindu Rao, Delhi110006 for the sale of the property in question after evicting the respondent from the premises. The said property dealer had contacted the respondent and asked him to specify the amount / money for the vacation of the premises. The E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 10 of 24 aforesaid property dealer namely Shri Parmod Aggarwal has agreed to state the aforesaid facts on affidavit. Accordingly, an affidavit on oath executed by the aforesaid property dealer Shri Parmod Aggarwal was also placed on record in the previous petition No. E118/2017. A similar affidavit executed by Shri Parmod Aggarwal has already been filed by the respondent.
20. During the pendency of the present case, the petitioners had received the actual, vacant and peaceful physical possession of the another tenanted premises forming part of property in question from the other tenant, namely, Smt. Asha Jain and Sh. Pankaj Jain on 29.07.2017. The said premises under the tenant of Smt. Asha Jain and Sh. Pankaj Jain is situated at ground floor of the property in question. The petitioners settled the matter / dispute with the said tenant at ground floor in the petition no. 488/2017 and accordingly obtained the actual physical and vacant possession of the tenanted premises of the said tenant at ground floor on 29.07.2017 before Court by receiving the keys of premises and by giving Rs. 2,50,000/ by way of demand draft to the said tenants.
21. The petitioners have filed the income tax returns of the petitioner no. 3 Shri Parveen Kumar Jain alongwith the reply. The said income tax returns show that Shri Parveen Kumar Jain is gainfully running his business even after the alleged closure of business in the year 2012. The ITRs for the year ending on 31.03.2013 and 31.03.2014 shows that the petitioner no. 3 is running his business successfully as he is purchasing the goods of a huge amount and also incurring expenses on machine E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 11 of 24 repair, telephone expenses, printing and stationery, accounting charges and is having net income of Rs. 2,64,639/ for the year ending 31.03.2013 and net income of Rs. 2,74,779/ for the year ending 31.03.2014. The petitioners have intentionally not filed the ITRs of petitioner no. 3 for the year 2015, 2016 and 2017 just to conceal the actual income and existing running business by the petitioners.
22. It is submitted that respondent is a lawful tenant in respect of one room, one store, verandah, kitchen, bathroom, jaal and latrine on the first floor of the property no. 7057, Gali Tej Singh, Ghas Mandi, Pahari Dheeraj, Delhi110006. The extent of tenanted premises has been duly acknowledged by the previous landlord in their last rent receipt dated 16.02.2011.
23. 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 his written statement, reaverring what was averred by him in the original eviction petition. It is submitted that building in question to which the tenanted premises form part of, is residential building situated in residential area, but the area of Pahari Dhiraj, Delhi in which the tenanted premises is situated is being used by people for residential cum commercial purpose, in the ratio of 90% commercial i.e. manufacturing units and shops of Hosiery Items on every floor and 10% residential. As such, premises are residential but also being used for residence as well as for commercial. It is submitted that in the present petition the tenanted premises and encroached upon, unauthorizedly E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 12 of 24 constructed and possessed portion by the respondent have been bifurcated. It is submitted that petitioners were running their manufacturing units since the year 1996 to upto year 2012 at ground floor as well as first floor of property in question. The petitioners were never allotted an alternative plot measuring 400 sq. yards i.e. plot no. A125, Wazirpur Industrial Area, Delhi, however the said alternate plot was allotted to the father of the petitioners and after the death of father of petitioners on 27.11.2003, the petitioners alongwith their 2 more brothers inherited 20% each of said property. The petitioners and their brother Rakesh Jain relinquished their 20% share in said property no. A125, Wazirpur Industrial Area, Delhi110052, by way of three registered gift deeds in 2009 in the name of Smt. Rita Jain wife of petitioner no. 1, Smt. Neha Jain wife of petitioner no. 2 and petitioner no. 3 respectively. The wives of petitioner no. 1 and 2 and petitioner no. 3 sold their 60% share in said property vide two sale deeds both dated 22.02.2012 duly registered on 23.02.2012.
24. The petitioners have not concealed any material fact regarding property no. T300, Gali Tank Wali, Pahari Dhiraj, Delhi, in their previous petition no. E118/2017, as the petitioners have no right, title, interest or possession in said property no. T300, Gali Tank Wali, Pahari Dhiraj, Delhi as same is owned by Smt. Darshan Jain wife of Shri Ashok Jain (elder brother of petitioners) and manufacturing unit of hosiery items being run by said Shri Ashok Jain under the name Sweta Hosiery Works as Sweta is daughter of said Shri Ashok Jain.
E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 13 of 2425. The petitioner no. 1 and 2 are not income tax payee. Only the petitioner no. 3 is income tax payee and is filing his income tax return through his CA and CA of petitioner no. 3 is still showing income of petitioner no. 3 from running of manufacturing unit under the name of Parveen Hosiery at Property in question bearing no. 7057, Gali Tej Singh, Ghas Mandi, Pahari Dhiraj, Delhi110006, although in the year 2012 petitioner no. 3 admittedly closed down his hosiery item manufacturing unit under the name Parveen Hosiery.
26. The petitioners are meeting there expenses out of their past savings and Rs. 1,38,00,000/ received by them by selling their 60% undivided share in property no. A125, Wazirpur Industrial Area, Delhi110052 and interest on their savings and on said amount, as they have given some loans to their acquaintances. The petitioners never acted illegally in the building in question. The 90% of properties in Pahari Dhiraj, Delhi, the manufacturing units, shops and godowns have been running for the last 65 years under the very nose of concerned authorities, which shows the deemed permission of concerned authorities. The petitioners have got the tenanted portion of other tenants in building in question vacated except the respondent against whom the present eviction petition is pending.
27. During evidence, petitioner Parveen Kumar Jain, stepped into the witness box as PW1 and deposed on the lines of the eviction petition. Further, he relied upon the following documents : a) Site Plan : Ex.PW1/1
b) The copy of registered sale deed dated 19.05.2011 with site plan of property no. 7057, Gali Tej Singh, Ghas Mandi, Pahari Dhiraj, Delhi : Ex. PW1/2
c) The original house tax receipt dated 01.06.2016 for payment E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 14 of 24 of property tax in respect of property no. 7057 : Ex. PW1/3
d) Copy of electricity bill dated 08.07.2016 of property no. 7057 : Ex. PW1/4 is deexhibited and Mark 1/4
e) Copy of electricity bill dated 08.07.2016 in the name of Jin Dass Jain father of the petitioner in respect of suit property : Ex.PW1/5 is deexhibited and Mark 1/5
f) Copies of water bills in the name of Jin Dass Jain : Ex. PW1/6 is deexhibited and Mark 1/6
g) Copy of photograph of petition in his factory prior to 2012 in a portion of suit property : Ex. PW1/7 is deexhibited and Mark 1/7
h) Photocopy of telephone bill dated 08.09.2007 in favour of petitioner of suit property : Ex.PW1/8 is deexhibited and Mark 1/8
i) Original letter head of Parveen Hosiery Work : Ex.PW1/9
j) 4 Copies of bills of different properties of every floor in Pahari Dhiraj showing Hosiery Items manufacturing units shops and godown : Ex.PW1/10 to 13 are deexhibited and Mark 1/10 to Mark 1/13
k) Photocopy of five visiting cards of various Hosiery Items manufacturing units, shops, godowns : Ex.PW1/14 to 18 are deexhibited and Mark 1/14 to Mark 1/18
l) Copy of police complaint dated 09.02.2010 made by petitioner : Ex.PW1/19 is deexhibited and Mark 1/19
m) Copy of police complaint dated 06.04.2010 made by petitioner : Ex.PW1/20 is deexhibited and Mark 1/20
n) Copy of police complaint dated 07.09.2010 made by petitioner : Ex.PW1/21 is deexhibited and Mark 1/21
o) Copy of police complaint dated 10.11.2010 made by petitioner to ACP (CAW), Cell North West District, Subzi Mandi : Ex.PW1/22 is deexhibited and Mark 1/22
p) Copy of birth certificate of Aman Jain son of petitioner no. 1 : Ex.PW1/23
q) Photocopy of election Icard of Aman Jain son of petitioner no. 1 : Ex.PW1/24
r) Certified copy of order dated 01.04.2017 passed in case bearing no. E118/17 titled as Raj Kumar Jain v. Suresh Kumar Jain : Ex.PW1/25
s) Photocopy of income tax return of the period 01.04.1973 to 31.03.1974 of Jin Dass Jain father of the petitioner and other petitioners running his proprietorship firm M/s Asia Hosiery Factory : Mark A
t) Photocopy of certificate of registration under Smallscale Industries of M/s New Asia Hosiery Factory : Mark B u) Photocopy of affidavit of Shri Jin Dass Jain for telephone connection in respect of his firm M/s Asia Hosiery Factory : Mark C
v) Photocopy of order dated 08.05.2017 passed in case bearing no. 118/2017 titled as Raj Kumar Jain v. Suresh Kumar Jain : Mark D w) Photocopy of two sale deeds both dated 22.02.2012 : Mark E and F.
x) Photocopy of conveyance deed dated 31.03.2003 in favour of Smt. Darshan Jain : Mark G y) Photocopy of five retail invoice of Sweta Hosiery work : Mark H to L z) Photocopy of Income tax return of Ashok Kumar Jain : Mark M aa) Photocopy of retail invoice of Natwar Hosiery : Mark N ab) Photocopy of five income tax return of petitioner : Mark O to S.
28. In his turn, the respondent Suresh Kumar Jain entered into the witness box as RW1 and deposed on the lines of the written statement. Further, he relied upon the following documents :
a) The site plan of property no.7057 filed by respondent : Ex. RW1/1
b) Certified copy of rent receipt dated 16.02.2011 : Ex. RW1/2
c) Photocopy of Electricity bill : Ex. RW1/3 is deexhibited and Mark R1
d) Photocopy of photograph of the property no. 7057 : Ex. RW1/4 is deexhibited and Mark R2
e) Certified copy of affidavit of Shri Raj Kumar Jain dated 03.01.13 : Ex. PW1/R1
f) Certified copy of earlier petition no. E. No. 440/13 : Ex. PW1/R3 E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 15 of 24
g) Certified copy of earlier petition no. E.No. 118/17 : Ex. PW1/R4
h) Affidavit of Shri Parmod Aggarwal, the property dealer : Ex. RW1/5
i) Certified copies of the compromise application, statements of tenants, their counsel and order dated 29.07.2017 passed in eviction petition no. 488/17 in respect of tenant at ground floor of property Smt. Asha Jain : Ex.PW1/R5 Shri Parmod Aggarwal, proprietor of M/s Ganpati Properties stepped into the witness box as PW2.
29. I have heard the contentions of both the parties and have gone through the record.
Ld. Counsel for the petitioner has relied upon the case law Mohd. Yousuf v. Mohd. Arafin 20 (1981) DLT 12 in support of his arguments.
Ld. Counsel for the respondent has relied upon the case law Dr. (Mrs.) N.D. Khanna v. M/s Hindustan Industrial Corporation New Delhi AIR 1981 Delhi 305 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 premises;
ii. He requires the premises bonafidely for himself or for family members dependent upon him;
iii. He has no other reasonable suitable accommodation.
Ownership and existence of landlord tenant relationship.
30. In the present case, the respondent has not disputed the existence of landlord tenant relationship between the parties as well as ownership of the petitioners over the property in question. Moreover, the petitioners have relied upon the copy of the registered sale deed Ex. PW1/2 and the house tax receipt Ex. PW1/3 to show that they are owners of the property in question and have purchased the property from the predecessor in interest and the respondents were tenants against the predecessor in E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 16 of 24 interest and thus after purchasing of property are tenants of the petitioners. Thus, in view of the documents placed on record by the petitioner, the ownership of the petitioners over the premises in question for the purpose of the DRC Act as well as existence of landlordtenant relationship between the petitioners and the respondent stands duly proved.
Bonafide requirement :
31. It is the case of the petitioners that the tenanted premises is bonafide required by the petitioners as they want to restart their respective manufacturing units of hosiery items in which petitioner no. 1 will also engage his 24 years old son with him as they are unemployed. It is stated that the area of Gali Tej Singh, Ghas Mandi, Pahari Dhiraj where the suit premises is situated and the entire area of Pahari Dhiraj is an old hosiery items manufacturing and selling area and there are number of manufacturing units of hosiery items running in the said area. It is stated that the hosiery items unit is non polluting unit and no noise is produce at the time of running of manufacturing unit of hosiery item. Per contra, it is stated by the respondent that the requirement of the petitioner is not bonafide, that the premises in question is a residential premises as mentioned in the sale deed as well as the same is being used for residential purposes by the respondent. It is stated that in the previous petition E. No. 118/17 the petitioners have alleged regarding bonafide requirement for residential purpose and now they have alleged their requirement for commercial purpose. The petitioners have also alleged E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 17 of 24 that the premises in question is residential cum commercial. It is stated that no commercial activities is allowed i.e. running of factory etc. is not allowed in the said area though the shops of trading etc. are existing in the gali but those are only on the ground floor. It is stated that even in the past the petitioners were running their factory on the ground floor portion of the suit property without having any license/permission/sanction from the concerned authority and accordingly, the same was closed by the petitioners as per the orders of the Ld. SDM, Delhi. The entire area is residential one. It is further stated that the petitioners were running their factory for running nylon socks etc. on ground floor of the property when the government declared the area to be a nonconfirming area, then the petitioners were allotted an alternative plot measuring 400 sq. yds. i.e. plot no. A125, Wazirpur Industrial Area, Delhi, in lieu of their factory in the premises in question. It is submitted that petitioners are gainfully doing their business by running their respective factories in the aforesaid plot no. A125, Wazirpur Industrial Area, hence, they do not require the premises in question for any alleged bonafide requirement for commercial purposes.
32. During cross examination PW1 stated that he cannot produce any document to show that commercial activities are allowed in the suit property. PW1 has also admitted that the respondent had filed a complaint before SDM, Kotwali in respect of running commercial activities by the petitioners in the premises in question. He has also admitted that petitioner no. 1 filed an affidavit before SDM Ex. PW1/R1 E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 18 of 24 to the effect that the petitioners have closed down the manufacturing unit in the premises in question. As per the sale deed the property in question is residential property. No document has been produced by the petitioners to show that the property can be used for commercial purpose or the usage of the property has been changed. Moreover, judicial notice can be taken that even as per Master Plan for Delhi, 2021 the said area i.e. Gali Tej Singh, Ghas Mandi, Pahari Dhiraj is not mentioned either in commercial or mixed land use areas. Moreover, the petitioners have not been able to prove that the property is lying in nonconfirming area or not despite the said ground been pleaded by the respondent in leave to defend application as well as in the written statement. Accordingly, in the grab of moving eviction petition it seems that the petitioners wish to start their factory i.e. manufacturing unit in a nonconfirming residential area which cannot be allowed. Even though the ARC is not to look into the business which the petitioners wish to start however the eviction order can be procured only for legal purposes and not for any purpose which is contrary to the law. The petitioners have not denied that plot bearing no. A125, Wazirpur Industrial Area was allotted to their father and the said plot was an industrial plot measuring 400 sq. yards.
33. It is also stated by the respondent that the petitioners have falsely alleged that they are unemployed since the year 2012, as they have been filing income tax returns even thereafter up to the year 2014. Per contra the petitioners have stated that the petitioners became unemployed since some time of year 2012 and the son of the petitioner no. 1 is also E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 19 of 24 unemployed. However, during cross examination PW1 stated that he closed his business in the year 2012 and continue selling left over goods which ended upto year 2014. He admitted that he has been running his business even after the year 2012 to 2014.
34. Further one more contention is raised by the petitioner that their earlier Counsel had filed the earlier petition mentioning the property as residential property despite it being residential cum commercial without the knowledge of the petitioner is also found to be highly unlikely. Hence, it seems that when in earlier petition bearing no. E118/2017 the leave to defend was allowed to the respondent wherein the requirement of residential premises was sought, the said petition was got dismissed. Later as a second thought, the petitioners have filed this eviction petition taking the ground of requirement of commercial accommodation despite the property not been a commercial property and not situated either on a commercial or mixed land use street as per MPD 2021. Moreover, the petitioners are not able produce any single document to show that they have ever applied for change of usage of the property from the residential to commercial. Hence, the petitioners are not able to prove their bonafide requirement for the premises in question.
Availability of alternate suitable accommodation.
35. It is stated by the respondent that the petitioners are having various reasonable and suitable accommodations at their disposal, details of which are as follows :
a) Property no. I129, Ashok Vihar, PhaseI, Delhi110052, E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 20 of 24 measuring 260 sq. yds., consisting of three storeys.
b) A flat in Sector8, Rohini, Delhi110085 in the name of petitioner no. 1 Sh. Raj Kumar Jain which is lying vacant/ without any use at the disposal of the petitioners.
c) A plot in Bahadurgarh, Haryana, in the name of petitioner no. 1 Sh.
Raj Kumar Jain.
d) A flat in the area of Sant Nagar, Burari, Delhi in the name of petitioner no. 2 Sh. Naveen Kumar Jain, which is also lying vacant without any use.
e) A flat in the area of Bhajanpura, East Delhi in the name of petitioner no. 3 Sh. Praveen Kumar Jain, which is also lying vacant/ without any use.
f) Property No. T300, Gali Tanki Wali, Idgah Road, Ahata Kidara, Delhi110006 which is constructed upto four storeys. This property is situated in the same vicinity where the premises in question is situated. The ground floor of the said property is being used by brother of the petitioners, Sh. Ashok Kumar Jain and the remaining three upper floors are lying vacant at the disposal of the petitioners.
g) Property no. A125, Wazirpur Industrial Area, Delhi, measuring 400 sq. yds. Constructed upto three storeys. The petitioners are already running their factory in this commercial property which was allotted to them in lieu of their factory.
PW1 has stated that the property bearing no. I129, Ashok Vihar is E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 21 of 24 residential property of their father. The property in Rohini is measuring 32 sq. yards is a residential plot in the name of wife of petitioner no. 1 where no unit can be established. The property at Bahadurgarh does not belong to the petitioner no. 1 and admittedly it is situated at outside Delhi and cannot be considered alternative suitable accommodation. The property at Sant Nagar does not belong to petitioner no. 2 and even other wise it is residential property where no unit can be established. It is submitted that petitioners do not have any property in Bhajanpura and even otherwise it is a residential property. It is submitted that the property T300, Gali Tanki Wali, belongs to the wife namely Smt. Darshan Jain of the eldest brother of Shri Ashok Kumar Jain and the petitioners do not have any right or claim over the property. The petitioners have filed conveyance deed dated 31.03.2003 Mark G in favour of Smt. Darshan Jain in support of the submission. The respondent has not been able to produce any document to show that the property at T300, Gali Tanki Wali belongs to the petitioners. It is submitted by the petitioners that they have already sold the property A125, Wazirpur Industrial Area vide two registered sale deed dated 22.02.2012 registered on 23.02.2012 Mark E and F. Hence, the said property cannot be stated to be available with the petitioners.
36. It is further stated by the respondent that the petitioners have filed eviction petition No. E448/17 in respect of the tenant at the ground floor of the property namely Smt. Asha Jain and her son. Later on the petitioners entered into a compromise with them and got the said E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 22 of 24 premises vacated. The respondent has relied upon the certified copy of compromise application, statement of tenant and their Counsel and order dated 29.07.2017 Ex. PW1/R5. It is submitted that the said property is also available with the petitioners. Per contra PW1 admitted to have receive the vacant peaceful possession from other tenant Asha Jain and Pankaj Jain, however it is stated that the requirement of the PW1 and other petitioners are not fulfilled as the available accommodation is not enough for establishment of hosiery unit. It is stated that PW1, other petitioners, son of petitioner no. 1 all want to establish their separate hosiery units in the premises.
37. It is already discussed that the premises in question is residential property and as per MPD 2021 the same is not even located in mixed land / commercial land usage street/ area. Moreover, the premises is lying in nonconfirming area where no manufacturing unit can be run. Moreover, the petitioners have themselves stated that the entire suit property except the tenanted premises is available with them. The suit premises is constructed upto second floor. The petitioner has no where explain how the part of the premises which is already available with the petitioners is not suitable for them or how the said premises is not sufficient for their requirement. Thus, the petitioners have failed to explain how the said portion which are lying vacant are not suitable as alternate suitable accommodation for the alleged business of running hosiery unit by the petitioners.
38. Thus in totality of facts and circumstances, in view of the E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 23 of 24 availability of the alternate suitable accommodation as discussed above and as premises is found to be residential in nature with no documentary proof of it is being commercial being produced by the petitioners. The present petition filed by the petitioners against the respondent u/s 14 (1)
(e) of the DRC Act is dismissed as rejected, as the petitioners have failed to prove the essential ingredients of Section 14(1)(e) of the DRC Act. In the facts and circumstances of the case, no order as to further costs.
Digitally signed by SUSHEEL SUSHEEL BALA
BALA DAGAR
Date: 2018.09.27
DAGAR 05:56:48 +0530
Announced in open Court (Susheel Bala Dagar)
on 26th Day of September, 2018 Pilot Court,
CCJ cum ARC(Central)
Tis Hazari Courts, Delhi.
(This judgment contains 24 pages.)
E. No. 487/17 Raj Kumar Jain v. Suresh Kumar Jain Page 24 of 24