Delhi District Court
Sh. Sanjeev Kumar vs (A) Nirmal Mittal on 21 February, 2022
IN THE COURT OF MS. ADITI GARG
SCJCUMRC (CENTRAL): TIS HAZARI COURTS: DELHI
RC ARC : 77929/16
1. Sh. Sanjeev Kumar
S/o Sh. Om Prakash Gupta
R/o 5011/45, Sant Nagar,
Karol Bagh, New Delhi5
2. Sh. Rajiv Kumar
S/o Sh. Om Prakash Gupta
R/o 5011/45, Sant Nagar,
Karol Bagh, New Delhi5
... Petitioners
VERSUS
1(A) Nirmal Mittal
1(B) Vijay Mittal
1(C) Mahesh Mittal
1(D) Mukesh Mittal
1(E)(i) Sh. Aman Singhal
1(E)(ii) Sh. Ayush Singhal
Both LR's of Madhu Mittal / Singhal D/o Late Sh.
Jugminder Dass Mittal who expired on 01.06.2021
& Aall R/o 3/22, Onkar NagarB
Tri Nagar, Delhi110035
2. Sh. Ravi Mittal
S/o Late Sh. Attar Chand Mittal
Grandson of Late Sh. Sri Lal Mittal
R/o 614/38, Onkar NagarC
Tri Nagar, Delhi110035
3. Sh. Rakesh Mittal
S/o Late Sh. Jai Kishan Dass Mittal
RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 1 of 21
Grandson of Late Sh. Sri Lal Mittal
R/o 41/6, Onkar NagarB
Tri Nagar, Delhi110035
4. Sh. Subhash Chand Mittal
S/o Late Sh. Sri Lal Mittal
R/o 32/426A, Onkar NagarC
Tri Nagar, Delhi110035
5A. Sh. Anu Goel (Widow)
5B Sh. Akhil (Son)
Both Lr's of Sh. Jai Prakash Mittal
S/o Late Sh. Sri Lal Mittal
R/o 91/11, Onkar NagarB
Tri Nagar, Delhi110035
..... Respondents
Date of institution of case : 10.09.2008
Date on which judgment was reserved : 05.02.2022.
Date on which judgment was pronounced : 21.02.2022
JUDGMENT
1. Brief facts of the case are that petitioners filed present eviction petition, based on their bonafide need, u/s. 14(1)(e) read with Sec.25B of Delhi Rent Control Act (in short 'DRC Act') against respondents with respect to shop no 4551, Main Arya Samaj Road, Reghar Pura, Karol Bagh, New Delhi110005, as shown in th red colour in the site plan annexed with the petition, hereinafter referred to as "tenanted premises". It is alleged that Smt. Razo Devi was the owner of the property no. 45514552, Arya Samaj Road, Reghar Pura, Karol Bagh, New Delhi5 (hereinafter referred as "the suit property"). She sold the suit property to Smt. Shingaro Devi W/o Late Chandgi Ram in the year 1966. At that time there were two tenants in the property namely Sh. Panna Lal RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 2 of 21 and Late Sh. Sri Lal S/o Late Sh. Prithi Singh. Both the said tenants started paying rent to Smt. Shingaro Devi. Smt. Shingaro Devi during her lifetime executed a Will dated 11.08.1976 in favour of the petitioners. Smt. Shingaro Devi expired on 08.02.1978. Petitioner no.1 and 2 became the owners and landlords of the suit property by virtue of the said Will. The property was duly mutated in the MCD records in the year 1981 and also in the DDA record in the name of petitioners.
Sh. Sri Lal was tenant in the shop no. 4551, Main Arya Samaj Road, Reghar Pura, Karol Bagh, New Delhi110005 measuring 130 sq ft approximately from where he was carrying on his jewellery business. The rate of rent was Rs.50/ per month excluding other charges. After the death of Smt. Shingaro Devi, Sh. Sri Lal continued to pay rent to petitioners till March 1995.
Sh. Sri Lal was habitual defaulter in the payment of rent and other charges, thus, petitioners terminated the tenancy vide notice dated 31.12.1990 and called upon him to vacate the tenanted premises on or before 28.02.1991.
Sh. Sri Lal assured that he would be regular in paying the rent in future and in consecutive default he would vacate the tenanted premises. Lastly he paid rent till 29.03.1995 as statutory tenant. He expired on 06.09.1996 and statutory tenancy was devolved upon his wife Smt. Gian Devi. After the death of Sh. Sri Lal, respondent no.1 Sh. Jugminder Dass started looking after the business.
Petitioners on numerous occasions had sent messages to respondent no.1 to handover the possession of the tenanted premises as no rent had been paid after March 1995 but Smt. Gian Devi had been avoiding the delivery of possession of the tenanted premises and payment of arrears of rent.
In October 2004, petitioners came to know that respondent no.1 was RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 3 of 21 carrying out illegal structural changes in the tenanted shop. Petitioner no.1 went to inspect the shop and found that major structural changes were being made without their permission. Petitioner no.1 told respondent no.1 to stop doing the same upon which respondent no.1 got the work stopped and assured that he would not make any structural changes in the tenanted shop and handover the same to petitioners on or before 31.03.2005. But he did not keep his words and made illegal structural changes in the tenanted shop and did not handover the same to petitioners. Petitioners sent legal notice dated 04.04.2005 to statutory tenant Smt. Gian Devi for paying arrears of rent since April 1995 and for vacating the tenanted premises. Smt. Gian Devi neither tendered nor paid the arrears of rent nor she vacated the tenanted premises. She sent a false reply dated 04.07.2005 wherein it has been alleged that she had no concern with the tenanted shop and only respondent no.1 is the sole proprietor and controlling the same. Rejoinder dated 08.07.2005 to the said reply was sent to Smt. Gian Devi.
Respondent no.1 thereafter filed a false case u/s. 31 of the Punjab Indebtness Act for depositing the arrears of rent in his name which was dismissed vide order dated 05.09.2006.
Petitioner no.1 is ailing with backbone problems and doctor advised him to have rest and not to travel. Petitioner no.1 has to go to his jewellry shop situated at Shani Bazar, Hastsal Gaon, Uttam Nagar, Delhi from Karol Bagh to earn his livelihood. Thus, petitioner no.1 requires the tenanted shop which is now in occupation of the LR no.1 of deceased statutory tenant Smt. Gian Devi as the said shop is merely 100 meters away from the residence of petitioners. The tenanted premises is required by petitioner no.1 for his own bonafide need. Petitioner no.1 does not have any other place in the vicinity to carry on work for earning his livelihood. The agreement dated 02.09.1948 also bound the RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 4 of 21 respondents to vacate the tenanted premises in case the owner/landlord required the premises for his bonafide use after giving one month notice. Petitioners have been asking time and again to vacate the tenanted premises but same had not been adhered to despite issuance of legal notice and court litigation. Hence, the present eviction petition.
2. Respondents after receiving summons in prescribed proforma filed their application for leave to defend within statutory period of 15 days which was dismissed by Ld. Predecessor of this court vide order dated 01.02.2011 and six months time period was given to respondents to vacate the tenanted shop.
3. Respondents challenged the said eviction order and filed revision petition before Hon'ble Delhi High Court. Hon'ble High Court vide order dated 12.11.2014 disposed off the said petition with the following consent order : "(i) The respondents/landlords are entitled to amend their petition with respect to particulars including those found at internal page 11 of the impugned judgment, and which amendment is allowed to be made and not opposed by the petitioners so that the bonafide need petition can reflect the exact bonafide need of the respondents/landlords.
(ii) Petitioners, and who are the respondents before the Additional Rent Controller, will file their written statement to the amended petition within a period of four weeks thereafter positively, failing which the right to file the written statement will stand closed.
(iii) Both the parties will not get more than two opportunities to complete their evidence ..........."
4. In compliance of order of Hon'ble High Court, petitioner filed amended petition alongwith certain documents on 01.12.2014.
RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 5 of 215. Respondents in their written statement, took preliminary objections that purported story of the petitioner no. 1 being a patient of backbone problems as alleged is falsified by the fact that the petitioner no. 1 is even today personally driving his cars bearing registration No. DL6CL1011. The petitioners have deliberately concealed from the Court that they have accommodation available to them immediately behind the premises in suit bearing Municipal No. 4584, Gali No. 52, Regharpura, karol Bagh. Further, that the petitioner no. 1 is the owner in constructive possession of one shop at the address 190A, Shanni Bazar, Uttam Nagar, Delhi which the petitioner No. 1 recently acquired and thereafter permitted to one Sh. Rajnish Kumar Sharma to occupy as a tenant. The purported medical record placed on record by the petitioner no. 1 is sham and bogus and it has been procured and that too for no purpose but to try and mislead the Court. Based on said reply, they prayed for dismissal of eviction petition
6. In response to the said written statement, petitioner filed replication in which he refuted the version of respondents and reiterated the version as mentioned in petition. Contents of same are not repeated here for the sake of brevity.
7. After completion of pleadings, matter was fixed for petitioner's evidence.
8. Petitioner examined ten witnesses to prove his case. He examined himself as PW1 and tendered in evidence his affidavit Ex.PW1/A in which he reiterated the facts as mentioned in the petition, which are not repeated here for the sake of brevity. He relied upon documents Ex.PW1/1 to Ex.PW1/26 and RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 6 of 21 documents Mark 'A' to 'N'. He was crossexamined at length by counsel for respondents.
9. PW2 Sh. Mahender Kumar was UDC from Trade & Taxes, Govt of NCT of Delhi, Ward No.48, Indraprastha Estate, New Delhi and he brought the summoned record i.e. record pertaining to M/s Chandgi Ram Om Prakash"
having TIN No. 07660157443.
10. PW3 was Sh. Jitender, LDC from Building Department, Karol Bagh Zone, MCD, Delhi was a summoned witness who brought the record Ex.PW 3/1 to Ex.PW3/4.
11. PW4 was Sh. Om Prakash Gupta S/o Late Sh. Hari Ram Arya. He was working as part time Accountant with M/s. Chandgi Ram Om Prakash, M/s. Ganeshi Lal Chandgi Ram, M/s. Panna Lal Om Prakash, M/s. Sri Lal Jewellers and M/s. Dhani Ram Yad Ram. He deposed that he prepared the details specified in Ex.PW1/22 and same is in his handwriting.
12. PW5 Sh. Sanjay Kumar, Zonal Inspector, House Tax Department, Karol Bagh, Anand Parvat, New Delhi. He brought the summoned record Ex.PW5/1 to Ex.PW5/5.
13. PW6 Sh. Karamvir Singh, LDC, Department of Trade & Taxes, Vyapar Bhawan, I.P. Estate, New Delhi. He brought the summoned record Ex.PW6/1 to Ex.PW6/3.
RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 7 of 2114. PW7 Dr. Y. S. Bundela, Sr. Neuro Surgeon from BLK Super Specialty Hospital, Karol Bagh, Delhi. He proved copy of his medical opinion which is at page no.39 of Ex.PW1/18, as Ex.PW7/1 and MRI opinion dated 18.10.2012 at page no.36 as mark 'X1'.
15. PW8 Dr. Ajay Bhutani, Chief Consultant, Spinal Neuro Surgeon, Sir Ganga Ram Hospital. He deposed that he had clinically examined Sh. Sanjeev Gupta on 10.12.2014 and found him suffering from L4/L5 with canal stenosis and advised him to undergo treatment of decompression.
16. PW9 Sh. Ravinder Kumar, JJA, Record Room (Civil), Tis Hazari Court, Delhi. He brought the summoned record Ex. PW9/1 to Ex.PW9/11.
17. PW10 Sh. Rajeev Gupta i.e. petitioner no.2 in the present case. He tendered in evidence his affidavit Ex.PW10/A. He relied upon the documents which were exhibited by PW1. After examining these witnesses petitioner's evidence was closed on 31.05.2019 upon statement of counsel for petitioners. Matter was then fixed for respondent's evidence.
18. Respondents examined Sh. Vijay Mittal as RW1 who tendered in evidence his affidavit Ex.RW1/A. Respondent's evidence was closed on 03.08.2019 at oral submission of counsel for respondents. Matter was fixed for final arguments.
19. Final arguments were addressed by Ld Counsels for both the parties. I have heard the submissions and have carefully gone through the material on the RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 8 of 21 record.
20. Before proceeding further, I must mention here the relevant law and its interpretation in the background of relevant caselaws.
Proviso (e) to Section 14 (1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14 (1) are :
(a) The said premises are bonafide required by the landlord either for himself or for his family member.
(b) The landlord or the family members has no other reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14 (1) (e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provisions has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 9 of 21 first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The bonafide requirement' must be in present and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in sub section (e) of Section 12 (1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the court is duty bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city / town is available. The judgment / order of the court / authority for eviction of a tenant which does not show that the court / authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment / order in appeal / second appeal / revision. Bonafide requirement, on a first look, appears to be a question of fact.RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 10 of 21
But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)
(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine i.e. without fraud or deceit ". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from his angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 11 of 21 what manner, he should live or to prescribe for him a residential standard of their own.
21. The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
22. The main emphases of the respondent has been on the point that petitioner is not suffering from any back problem and therefore, he is fit to travel to Uttam Nagar and the bonafide need has been wrongly envisaged by the petitioner.
As per petition, the petitioner has stated that the petitioner no. 1 is suffering with back pain problems and has been advised not to travel by the doctor. It is stated that petitioner no. 1 is residing at Karol Bagh and has to currently travel to Uttam Nagar for his business which is hazardous to his health and therefore, present petition has been filed. It is further stated son of petitioner no. 1 namely Sh. Ashish Gupta would be looking at business at the shop at Shani Bazar at Uttam Nagar. It is further stated that petitioner no. 1 has no concern with shop No. 4453, 4453A and 4452 as the same are in occupation of Sh. Mukesh Kumar and Sh. Rajiv Gupta. The petitioner has further stated that he has no other shop available in Karol Bagh as all the shops are occupied.
PW7 DR. Y.S. Bundela, Sr. Neuro Surgeon was examined and had deposed that patient ( petitioner herein) had visited him in OPD on 07.11.2012 and had complained of low back ache and acute compression since 2004. Copy RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 12 of 21 of opinion and MRI has been filed in the court. In his cross examination by Ld Counsel for the Respondent, he has deposed that patient had visited him only once in the hospital and surgery was advised to him. It has been further deposed that as per the diagnosis , there could be a possibility of pain and difficulty while walking.
Dr. Ajay Bhutani was examined as PW8 and he has corroborated the version of PW7 Dr. Y.S. Budela. Ld. counsel for respondent had cross examined the PW1 exaustively on numerous dates and most of the cross examination has been on limited aspect, I.e. whether petitioner no. 1 is capable of traveling or not. The petitioner herein had complained of back ache. He had got medical practitioners examined in order to prove his contentions. Whether he undertook the surgery or not is his personal decision. However, the fact that he had been advised b ac k surgery has remained unrebutted. Furthermore, it is natural that any person who has back issues, would have difficulties in long travel, or long sitting hours or while walkin/ jogging. The same had been deposed by the medical practitioner as well. The respondent could not refute the report of the medical practitioner, on the other hand, the respodnent had attempted to refute the testimony of the petitioner b y asking him questions and putting suggestions in order to show that the petitioner was carrying normal functions. I fail to understand,how can the respondent even expect the petitioner to sit at home and then only file the eviction petition. There is no dispute that the property at Uttam Nagar is at considerable distance than the property situated at Karol Bagh. It is a well settled law that the respondent cannot dictate the petitioner how he has to lead his life. And the petitioner cannot be forced to live with adversity and to worsen up his health even when he has a shop available at his vicinity. Back problem can be aggravated during travel and that RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 13 of 21 does not require specific medical diagnosis as such even otherwise. The option for a shop at Karol Bagh and a shop at Uttam Nagar to a person who is residing at Karol bagh, would be feasible option as it requires less travel time.
23. Further, in another landmark case of "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby it was held that :
".....The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself....".
In the present case, the need of the petitioner , does not appear to be whimsical, or imaginary or moonshine. The court cannot view the need of the petitioner with criminal suspicion, the approach to be adopted by the court has to be rather practical, radical and that of a reasonable man.
Hence, the ground taken by the respondent that the present petition has RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 14 of 21 been filed without any bonafide need does not hold much ground as PW7 and PW8 have already corroborated the petitioner's testimony and had stated that petitioner no. 1 had problem in his back. Whether the petitioner no. 1 was carrying out their business or when he is traveling become immaterial in the presence of documentary evidence showing back problems of petitioner no. 1.
24. The remaining defence by the respondent is that the petitioner has suitable alternate accommodation available and that the need of the petitioner is not bondfie. The landlord and tenant relationship is admitted. The respondent has challenged the site plan of the petitioner, however, no site plan has been filed by the respondent.
If a tenant does not file any site plan, then site plan filed by the landlord is assumed to be correct. (Harvansha Lal vs Madan Lal 1997RLR383). No site plan has been filed by the respondent, therefore the site plan filed by the petitioner is taken to be correct.
As regards, alternate accommodation, the respondent had stated in their WS that the petitioners and /or their family members have acquired title to a specific portion (with vacant possession) of the adjacent building bearing no 4553, Main Arya Samaj Road, Karol Bagh, New Delhi. It is stated that wife of elder brother of Sh Mukesh Gupta and wife of Sh Rajiv Gupta have purchased the above said portion, and have punctured the common was between 4552 and 4553, converting it into one single showroom, and the petitioners their brother are carrying out their business from there jointly under the name and style of M/S Ganeshi Lal Chandgi Ram.
RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 15 of 21The respondent had not proved this contention with any documentary or other proof. On the other hand, the respondent in para 2 of his written statement, has stated that story of petitioner no 1 having back ache is falsified by the fact that he is driving his personal cars to travel everyday to his showroom at Shani Bazar, Uttam Nagar, Delhi. So on one hand the respondent had stated that the petitioner is carrying out business jointly from the shop at karol Bagh, and on the other hand, the respondent himself had stated that the petitioner is daily traveling to his showroom at Uttam Nagar. Contrary pleas have been taken by the respondent. There is not even an iota of proof to prove the contentions of the respondent.
The respondent had further stated that the petitioner is in possession of accommodation no 4584, and the same is big enough to be a shop, however the same has been not properly shown by the petitioner in the site plan. Apart from this, the respondent had cited properties of Uttam Nagar and mezanine floor adjoining the tenanted premises, from where the petitioners ca carry out their business.
Let us examine what can be termed as alternate suitable accommodation as per section 14(1)(e) DRC.
In the judgment tiled as "Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta" reported as AIR 1999 SUPREME COURT 2507, it was held:
"...The landlord may convince the Court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 16 of 21 accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come...".
Supreme Court in Dhannalal v. Kalawatibai (2002) 6 SCC 16 held that 'an alternative accommodation', to entail denial of the claim of the landlord, must be 'reasonably suitable', obviously in comparision with the accommodation whereform the landlord is seeking eviction. It was further held that the availability of another accommodation suitable and convenient in all respects as the accommodation from which the landlord is seeking eviction may have an adverse bearing on the finding as to bonafides of the landlord, if he unreasonably refuses to occupy the available premises to satisfy his alleged need. It was yet further held that the bonafides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bonafide, then in the matter of choosing out of more accommodation than one available to the landlord, his subjective choice shall be respected by the Court. Again, in Uday Shankar Upadhyay v. Naveen Maheshwari (2010) 1 SCC 503, it was held that it is not for the Courts to say that the landlord should shift to the first floor or any higher floor as it is well known that shops and businesses are usually conducted on the ground floor, because the customers can reach there easily. It was reiterated that the Court cannot dictate to the landlord which floor he should use for his business RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 17 of 21 and that is for the landlord himself to decide. The plea of the landlord of requirement is not to be judged by considering the possibility by which the tenant may be allowed to continue in the premises. The requirement is to be judged on the basis of the property as it stands and not by commanding the landlord to make structural changes therein, to somehow or the other accommodate the tenant.
Conjoint reading of the aforesaid judicial dicta thus naturally entails: That the petitioner, for the successful outcome of his petition u/s 14(1)(e) DRC, has to satisfy the court that his need is bonafide. Bonafide would mean genuine, and not influenced or backed with the intention of merely getting the tenanted premises vacated from the tenant. In the present case, the need of the petitioner is for running jewellery business alongwith the present business of real estate.
In Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252,observations made by Supreme Court in Baldev Singh Bajwa V Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted as under : It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his own RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 18 of 21 requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that his inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
Coming to the facts of the present petition, The properties at Uttam Nagar are not suitable to the petitioner no 1 as he had stated that due to back ache he cannot travel daily to long distances. As regards the mezanine floor, even if it is assumed for the sake of arguments, that the RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 19 of 21 same is available to the petitioner, then also, space on upper floor is not equally suitable to shop at ground floor, as the shop on ground floor would attract better footfall. As regards property no 4584, again no proof has been shown by the respondent in support of his contentions and merely a plea regarding its availability has been taken. It is cardinal principle of evidence, that he who alleges has to prove the fact. Therefore, the primary onus was on the respondent with respect to the facts regarding availability of alternate available accommodation. However, the respondent had failed to discharge the burden of proof casted upon him. Even if some shop has been purchased by wife of Rajeev Gupta, then also she is not duty bond to make the shop available to the petitioner no 1 for his use. And it would be impractical to think that the wife of one brother would be bound to bring in the common pool the property owned by her, for enjoyment of everyone. Therefore, if at all any property has been bought by spouse of any brother of the petitioner no 1, the same cannot be said to be available to the petitioner.
The respondent had taken the plea that the petitioners along with their brother Mukesh Gupta are all jointly carrying on their business in the name and style of M/S Ganeshi Lal Chandgi Ram, however the same appears to be a vague assertion/plea without any supporting proof.
Landlord tenant relationship is established. The petitioner has been able to establish its better title . As discussed in the aforesaid paragraphs, the petitioner has been able to prove its bonafide requirement as well. The petitioner has shown its bonafide and fulfilled the requisites of section RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 20 of 21 14(e) DRC, and has become entitled to eviction. Consequently, eviction order is liable to be passed against the respondents u/s Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e. shop no 4551, Main Arya Samaj Road, Reghar Pura, karol Bagh, New Delhi110005, as shown in the red colour in the site plan annexed with the petition.
However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act. Furthermore, the respondents are liable to pay user charges @ Rs 6000 per month, till the date of eviction/ handing over of possession, as held by Hon'ble Delhi High Court, in order dated 29.5.2012, in RC Rev 247/2012. Keeping in view the facts & circumstances of the case, no order as to costs.
25. File be consigned to Record Room after necessary compliance.
Announced in open court (Aditi Garg)
Dated 21.02.2022 (Through VC) SCJCumRC (Central)
Tis Hazari Courts: Delhi
RC ARC : 77929/16 Sanjeev Kumar & Anr VS Jugminder Dass & Ors Page 21 of 21