Delhi District Court
Sh. Satinder Pal Kharbanda vs Smt. Kunti Devi on 30 August, 2019
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 25336/2016
1. Sh. Satinder Pal Kharbanda
S/o Late Sh. Deshraj Kharbanda,
WZ-250 A, Street No. 10,
Hastsal Road, Uttam Nagar,
New Delhi-110059.
2. Smt. Santosh Kharbanda
W/o Sh. Satinder Pal Kharbanda,
WZ-250 A, Street No. 10,
Hastsal Road, Uttam Nagar,
New Delhi-110059. .... Petitioners
VERSUS
1. Smt. Kunti Devi
W/o Late Sh. Ambika Singh
House No. E-15 (New No. D-15),
Shiv Colony, Vikas Nagar,
Ranholla Road, Uttam Nagar,
New Delhi-110059.
2. Sh. Akash Kumar
S/o Late Sh. Ambika Singh
House No. E-15 (New No. D-15),
Shiv Colony, Vikas Nagar,
Ranholla Road, Uttam Nagar,
New Delhi-110059.
3. Sh. Vikas Kumar
S/o Late Sh. Ambika Singh
House No. E-15 (New No. D-15),
Shiv Colony, Vikas Nagar,
Ranholla Road, Uttam Nagar,
New Delhi-110059. .... Respondents
ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 1 /14
Date of Filing : 10.10.2013
Date of Judgment : 30.08.2019
JUDGMENT
1. Brief facts of the present case are that on 10.10.2013, the petitioners filed a petition Under Section 14 (1)(j) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') praying to this court to pass an order for eviction in favour of the petitioners and against the respondents/Tenants in respect of tenanted premises in property No. E-15 (New No. D-15), Shiv Colony, Vikas Nagar, Ranholla Road, Uttam Nagar, New Delhi as shown in the site plan.
2. The case of the petitioners is that the petitioners are husband and wife and are joint and exclusive owners of the suit premises vide documents i.e. Agreement to Sell, GPA, Will, receipt etc. That in the year 1995, the deceased Sh. Ambika Singh, who was husband of respondent no. 1 and father of respondents no. 2 & 3 was allowed to use one room, Kitchen and bath room in the suit premises purely on license basis without paying any license fee. That after the death of Sh. Ambika Singh in October 2006, the premises/ license to use the suit premises was automatically cancelled and the respondents were in unauthorised possession of the tenanted premises. That the petitioners had filed a suit baring No. 154/2009, titled as Satinder Pal Kharbanda Vs. Kunti Devi, for recovery of possession, rent and damages. That the respondent had filed a written statement in the above noted suit and stated that in the year 1995, the tenanted premises consisting of one room, kitchen, bathroom at the monthly rent of Rs. 200/- excluding ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 2 /14 electricity and water charges had been taken on rent by late Ambika Singh from the petitioners. Later on, the above suit was dismissed by the Court of Sh. Kapil Kumar, the then Ld. Civil Judge. That the said suit was hit by Section 50 of Delhi Rent Control Act. That in the first week of August, 2013, the petitioner no. 1 along with his elder son visited the tenanted premises and was surprised and shocked to see that the respondents have raised illegal and unauthorised construction in the tenanted premises without having taken any permission from the petitioners. That the respondents have no right to raise or change the nature of tenanted premises. That only one room, kitchen, bathroom was let out to the father of respondents no. 2 & 3 and husband of respondent No. 1 but the respondents permanently covered the open back courtyard as second room and increased the height/length of wall of back side and shifted the Lavatory from front side to backside and also installed permanent iron gates. That the act of the respondents is illegal, arbitrary, malafide and hit the U/Sec. 14(1)(j) of D.R.C. Act which prevent the tenant to cause substantial damages in the tenanted premises. That the respondents have made material alterations in the tenanted premises and due to which character and shape of the premises has been changed.
Lastly, it is prayed that an order for eviction may be passed in favour of the petitioners and against the respondents in respect of tenanted premises.
3. Respondents filed their Written Statement in which they inter-alia stated that the suit of the petitioners is liable to be rejected U/o 7 rule 11 CPC. That the site plan is not as per the ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 3 /14 site of the suit premises. That the suit premises consisting of one room (having two portions with common door separated by a common wall, constructed to support the angle irons of roof of both the portions/ sides of the room), kitchen, bathroom, gallery and open yard, at the monthly rent of Rs. 200/- p.m., excluding electricity and water charges was taken on rent by late Sh. Ambika Singh (the husband of respondent no. 1 and father of respondents no. 2 & 3) from the petitioners in the year 1994, and he was paying the rent to the petitioners regularly throughout his lifetime and thereafter the said rent was being paid by the respondents herein, but the petitioners were/ are not issuing rent receipt. That repeatedly the petitioners in this petition have mentioned the fact that late Sh. Ambika Singh was a licensee of the petitioners in the suit premises and not a tenant, therefore, if the relationship between the parties is not that of the landlord and tenant, then this court has jurisdiction.
That the respondents have not covered the open back courtyard and they have also not increased the height/length of the wall of the backside, they have also not shifted the lavatory or anything else from one side to another. Further, they have not fixed/installed permanent iron gates at any place in the suit premises and the suit premises is in the position as it was at the time of taking on rent by Late Sh. Ambika Singh in the year 1994. However, the respondents have installed a door in the 'roof angle iron supporting' common wall with the due prior permission of the petitioners, and they are the petitioners who first permitted the respondents to install a door in the common wall of the two portions of the room.
That Late Sh. Ambika was never a licensee but he was a ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 4 /14 tenant in the suit premises since 1994 and now the respondents, being his legal heirs are tenant in the suit premises. That the annexed photographs filed by the petitioners are unworthy as they do not contain any date of photograph. That the alleged photographs are not showing that these are the photographs of suit premises and not of any other place or property.
Lastly, it is prayed that this court may be pleased to dismiss the petition of the petitioner.
4. Record reveals that replication has also been filed by the petitioners to the written statement filed by the respondents. The petitioners have denied all the allegations levelled by the respondents and reiterated and reasserted all the facts as stated in the petition.
5. The petitioners examined Sh. Satinder Pal Kharbanda as PW-1 to prove their case and PW-1 relied upon various documents. Petitioners also examined Sh. Saurabh Kharband as PW-2, who also relied upon various documents. Thereafter Petitioners' Evidence was closed.
On the other hand, respondents examined Sh. Akash Kumar as RW-1 as the only witness. The respondent/RW-1 tendered his evidence by way of affidavit Ex. RW-1/A and relied upon the documents. Thereafter, respondents closed their evidence.
6. I have heard arguments advanced on behalf of Ld. Counsels for the parties and gone through the record carefully.
ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 5 /14Section 14(1) (j) of D.R.C. Act:-
7. Section 14(1)(j) is reproduced as under:-
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
(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."
It is well settled that every damage to premises does not entitle the landlord to obtain the eviction order. There should be substantial damage to the premises. There should be material alteration in the premises. The onus to prove that the tenant has caused substantial damage to the property is on the landlord.
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 ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 6 /14 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".
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 ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 7 /14 and Haryana High Court observed that:-
"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 ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 8 /14 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 eviction in Appeal No.328-D of 1964 is consequently dismissed."
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;ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 9 /14
(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 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."
8. I have carefully gone through the pleadings of the parties keeping in view the guidelines and observations made by the Hon'ble Supreme Court and Hon'ble High Court.
9. The petitioner has claimed that only one room, kitchen, bathroom were let out to the father of respondents no. 2 & 3 and husband of respondent No. 1, but the respondents permanently covered the open back courtyard as second room, increased the height/length of wall of back side and shifted the Lavatory from ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 10 /14 front side to backside and also installed permanent iron gates.
On the other hand, the respondent has contended that the respondents have not covered the open back courtyard and they have also not increased the height/length of the wall of the backside and they have also not shifted the lavatory or anything else from one side to another. They have further claimed that they have not fixed/installed permanent iron gates at any place in the tenanted premises and the tenanted premises is in the position as it was at the time of taking on rent by Late Sh. Ambika Singh in the year 1994. However, it is admitted by the the respondents that they have installed a door in the 'roof angle iron supporting' common wall with the due prior permission of the petitioners, and they are the petitioners who first permitted the respondents to install a door in the common wall of the two portions of the room.
Perusal of record shows that the respondents have admitted to have made some alterations in the tenanted premises but the contention of the respondents is that alterations were made with due permission of the petitioners. I have also gone through the testimonies of all the witnesses on record and also the documents placed by both the parties.
Perusal of record shows that the petitioners have placed certain photographs Ex. PW-1/7 to PW-1/12 to prove the illegal constructions and alterations by the respondents. I have also perused the testimony of PW-1 wherein he stated that PW-1/7, PW-1/9 and PW-1/11 were taken prior to unauthorised construction in the suit premises/tenanted premises. Whereas photograph Ex. PW-1/8, PW-1/10 and PW-1/12 are of the same property after unauthorised construction. It is deposed by the ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 11 /14 petitioner/PW-1 that such photographs were taken by his elder son namely Sh. Saurabh Kharbanda.
10. I have scrutinized the aforementioned photographs on record. Perusal of the record shows that the negatives of the photographs have not been placed on record by the petitioners. Moreover, these photographs are unable to identify the tenanted premises. Besides affidavit of PW-1/A do not show the dates of taking these photographs. Even, PW-2 has not been able to specify the exact date of taking such photographs.
I have also carefully perused the testimony of respondent no. 2/RW-1 Sh. Akash Kumar which shows that the respondent no. 2/RW-1 has admitted these documents/ photographs and it is also admitted by RW-1 that no permission has been taken from the petitioners for construction of additional room in the back courtyard as well as to install a door in the roof angle iron supporting common wall in the Centre hall.
11. As mentioned earlier, all the alterations and additions in the premises are not substantial damage and the duty is always on the landlord to prove that such alterations and additions have caused substantial damage to his premises. It is well settled that every damage is not substantial damage.
12. It is well settled that 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 the building either from commercial and monetary point of view or from utilisation aspect ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 12 /14 of the building. It is also clear that every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and each case depends upon its own facts.
13. As such, in my considered view the petitioners have not been able to fulfill 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.
In view of well settled proposition of law and discussion earlier and material on record, I am of the considered view that the petitioners have not been able to satisfy all the ingredients of Sec. 14(1)(j) of DRC Act and also the requisites as directed by the Hon'ble High Court.
CONCLUSION:-
14. In view of the aforesaid discussion, this court has come to the conclusion that the petitioners have not been able to satisfy all the ingredients of Section 14(1)(j) of D.R.C. Act in respect of the tenanted premises in property No. E-15 (New No. D-15), Shiv Colony, Vikas Nagar, Ranholla Road, Uttam Nagar, New Delhi as shown in the site plan attached with the petition Ex. PW-1/5.
15. As discussed earlier, ingredients of Sec. 14(1)(j) D.R.C. Act could not be proved by the petitioners. As such, the present petition is dismissed.
ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 13 /1416. File be consigned to Record Room after due compliance.
Announced in the open court Digitally signed on 30th August, 2019. AJAY by AJAY NAGAR (This judgment contains 14 pages) NAGAR Date: 2019.08.30 17:13:03 +0530 (AJAY NAGAR) Additional Rent Controller, West District, THC, Delhi. ARC No. 25336/2016 Satinder Pal Kharbanda Vs. Kunti Devi & Ors. Page 14 /14