Delhi District Court
Kanwar Partap Singh vs Rajbir Pal on 26 August, 2021
IN THE COURT OF SH. VIRENDER SINGH,
ACJ-CUM-CCJ-CUM-ARC (NORTH), ROHINI
COURT, DELHI
IN THE MATTER OF:
Kanwar Partap Singh
S/o Late Ch. Surat Singh,
R/o 73, Rajpur, Gur Mandi,
Delhi - 110007.
.....Petitioner
VERSUS
1. Rajbir Pal,
S/o Sh. Prem Raj
2. Sh. Chander Pal
S/o Sh. Kanchhida
Both R/o
82, Village Rajpura,
Gur Mandi, Delhi - 110007.
.....Respondents
ORDER
1. New RC no. : 37-18
2. Under section : Eviction of tenant U/s
14 (1) (e) r/w Section 25
(B) of DRC Act
3. Date of institution : 28/08/2018
4. Reserved for Order : 21/08/2021
4. Date of final order : 26/08/2021
Kanwar Pratap Singh Vs. Rajbir Pal Anr. 1 of 40
5. Final order : Eviction petition is
allowed / Leave to
defend application is
dismissed.
1. Vide this order, I shall decide the Leave to Defend Application filed by the respondents against the present eviction petition filed by the petitioner under Section 14 (1) (e) read with Section 25 (B) of Delhi Rent Control Act 1958 (herein referred as DRC Act 1958).
PLEADINGS OF THE PARTIES Petition
2. It is the case of the petitioner, that he is the owner and landlord of suit property i.e. property no. 82, Village - Rajpura, Gur Mandi, Delhi - 110007 hereinafter referred as "Suit Property". Suit property was bequeathed upon the petitioner as per the will of his father Late Sh. Surat Singh. Sh. Surat Singh was the recorded owner of this property in the revenue records. Respondents are tenants in the suit property and the respondents have also been making payment of rent to the petitioner. The respondents had also deposited the rent under Section 27 of DRC Act in the Court of Ld. ARC, Delhi in the name of petitioner. In Kanwar Pratap Singh Vs. Rajbir Pal Anr. 2 of 40 previous eviction petition no. 56369-16, the respondents had made a challenge to the title of the petitioner but vide judgment dated 31/07/2018, the Ld. ARC held that the petitioner is the landlord and owner of the suit property. Suit Property was let out to the respondents for commercial purposes and now it is required by the petitioner bonafiedly for commercial purpose for his family members. According to the petitioner, he has six children i.e. five daughters and one son. All the five daughters are married. The son Kunwar Ajay Singh is married to Smt. Kusum Chaudhary. Sh. Kunwar Ajay Singh has one daughter namely Aparna Chaudhary and one son Master Garvit Singh. The entire family of Kunwar Ajay Singh is dependent upon the petitioner for the purposes of their residential and official / commercial requirements. Alongwith the family, Kunwar Ajay Singh is residing at property no. 94-95, Rajpura, Gur Mandi, Delhi - 110007 which belongs to the petitioner only.
Kunwar Ajay Singh is a law graduate and he is Honorary Consultant and Advisor in the field of law. He is around 50 years old and till date he has been meeting his clients in the drawing room of his residence. He is associated with various NGOs and Associations and is rendering free legal advice to various needy people. His clientage has grown up manifolds and he needs separate law office to attend Kanwar Pratap Singh Vs. Rajbir Pal Anr. 3 of 40 his clients, wherein he can have his personal cabin and space for his support staff, besides space for clients. He wants to start full fledged law office and to practice as full time Advocate. Premises i.e. the suit property is best suited for operating his law office as the same is just adjacent to the present residence of Kunwar Ajay Singh. He further submits that the clients from all strata of society visits him therefore, his office should be separate from his residencial premises. The suit premises are just adjacent to the residence and therefore is best suited and he can afford to work even in late hours and even it would save commutation time, in case he opens his office elsewhere. Further, for taking office elsewhere, he will have to spend atleast Rs. Two crores to purchase or pay Rs. One Lakh per month as rent if taken on rent.
At present, the paying guest hostel is being run from property no. 94-95, Gur Mandi, Delhi - 110007. There are 130 rooms and all are fully occupied. In fact the demand for PG accommodation by the students was more than the available accommodation of the suit property and therefore, the said company had to take another property no. 98A, Gur Mandi, Delhi which is measuring about 125 Sq. Yards. The petitioner has taken loan of Rs. 1.7 crores from M/S Reliance Commercial Finance Loans Ltd. to develop the aforesaid property into a PG Kanwar Pratap Singh Vs. Rajbir Pal Anr. 4 of 40 accommodation. The PG accommodation has started functioning from this year i.e. year of filing of present petition.
Smt. Kusum Chaudhary W/o Kunwar Ajay Singh is also Director in the said company and is looking after the working of the said hostel. As the workload of PG Hostel is more only during May to July every year on account of new admissions in the University and therefore, Smt. Kusum Chaudhary remains idle in the remaining period of the year. Thus, Smt. Kusum Chaudhary is willing to start a new venture as she is an active lady and does not want to sit idle and the petitioner has decided to open a new business for her.
Ms. Aparna Chaudhary i.e. grand daughter of the petitioner is a graduate and instead of looking a job elsewhere, she wants to open new venture wherein, she alongwith her mother can work together. Due to lot of demand for coaching institute and libraries, Smt. Kusum Chaudhary and Ms. Aparna Chaudhary want to start coaching institute for the aspirants / entrants to various academic and professional courses and also for the job seekers for SSC, Banks, Judiciary etc. and for this purpose, daughter-in-law and granddaughter themselves are not required to be personally well versed in the subjects of the coaching as the qualified trained staff Kanwar Pratap Singh Vs. Rajbir Pal Anr. 5 of 40 will be hired for the same.
That further, now a days there is a trend to open libraries / study spaces alongwith tea / coffee stores nearby the PG Hostels and there are hundreds of hostels in and around the property in question including the area of Vijay Nagar, Gupta Colony, Roop Nagar, Kamla Nagar, Shakti Nagar, Rajpura, Ashok Vihar, Bharat Nagar, Hudson Lane etc. and the students of these localities have always been at the look-out for study place and therefore, daughter in law and grand daughter of the petitioner have decided to open this library cum study on the ground floor of the suit property and Coaching Institute in various fields on the other floors. Kunwar Ajay Singh can also utilize one floor for his law office and the suit property is most ideally located for this purpose.
Petitioner further averred that he had filed an eviction petition under Section 14 (1) (e), DRC Act bearing no. 59369-2016, wherein the suit premises were stated to be required for the support staff of the PG Hostel being run from the property no. 94-95, Rajpura, Gur Mandi, Delhi - 110007. However, the said petition was dismissed vide judgment dated 31/07/2018 on the ground that the site plan of the property no. 94-95 was not filed. So as to ascertain the exact number of rooms, therein and in the said event it was difficult to decide that there was Kanwar Pratap Singh Vs. Rajbir Pal Anr. 6 of 40 requirement for the additional space for managerial staff and the present requirement has now arisen as the daughter-in-law and grand daughter of petitioner have decided to run their independent activities to earn the livelihood for them.
In view of aforesaid, the petitioner has prayed for allowing the present petition.
In support of the petition the petitioner has annexed Site Plan of the property no. 94-95 and property no. 82. He has also filed certified copy of Jamabandi, death certificate of Sh. Surat Singh Chaudhary i.e. the father of the petitioner, certified copy of Will dated 09/03/1999, certified copy of house tax receipts, photocopy of memorandum of association, photocopy of sale deed dated 23/02/2017, photocopy of sanction letter of loan, photocopy of letter dated 12/12/2017 from Reliance Money, copy of letter dated 12/05/2016 from IIFL and Site Plan of property no. 98A, Gur Mandi, Delhi. He has also annexed photocopy of mark sheet, certificate from BAR Council of Delhi, photocopy of letter from BAR Council of Delhi, photocopy of mark sheet of Final Year, certified copy of judgment dated 31/07/2018, certified copy of earlier eviction petition and original GPA in favour of Kunwar Ajay Singh.
Summons of the petition were sent to the respondents and they have put their appearance and Kanwar Pratap Singh Vs. Rajbir Pal Anr. 7 of 40 filed an application under Section 25 B of DRC Act i.e. the leave to defend application. Copy of the same was supplied to the petitioner and he has also filed reply to the same. The respondents have also filed supporting affidavits with leave to defend application and the counter affidavit is also filed on behalf of petitioner qua the aforesaid affidavit of respondents.
Leave To Defend Application
3. The respondents have sought leave to defend the eviction petition on the grounds which are as follows :-
1. That this Court does not have jurisdiction to issue summons of the petition for eviction in Form, as prescribed in Schedule - III of DRC Act, 1958 (hereinafter referred to as 1958 Act). Proforma under which summons has been prescribed by the legislature only for the residential premises required for residential purpose.
2. Summons, as has been detailed in Schedule - III of 1958 Act has not been prescribed by the legislature for premises meant for commercial / industrial use. Petition is not maintainable under Section 14 (1) (e) of 1958 Act.
Kanwar Pratap Singh Vs. Rajbir Pal Anr. 8 of 40
3. That even within the limited scope of judgment of Hon'ble Supreme Court of India in "Satyawati Sharma Vs. Union of India", reported as (2008) 5 SCC 287, an eviction petition relating to commercial / industrial premises on the ground of bonafide requirement under Section 14 (1) (e) of 1958 Act is not maintainable. The scope of the said judgment, without admitting the same to be applicable to the present case, extends the application under Section 14 (1) (e) of 1958 Act only to the residential premises. The scope of the said judgment does not extend to the premises meant for commercial / industrial and let as such. The statute of Section 14 (1) (e) of the 1958 Act, as edited by the Hon'ble Supreme Court of India in the judgment of "Satyawati Sharma Vs. Union of India", reported as (2008) 5 SCC 287 (Supra), is yet to be incorporated in the statute of 1958 Act. Unless the edited provision is made part of the statute of 1958 Act, special procedure, as prescribed in Section 25 B of 1958 DRC Act cannot be attracted by serving the summons of the case in Schedule - III of 1958 Act.
4. Assuming, without admitting that the benefit of the said judgment is available, it is averred that the matter of bonafide requirement for business / commercial, it is the state of mind of the landlord which Kanwar Pratap Singh Vs. Rajbir Pal Anr. 9 of 40 discloses the cause of action and unless as landlord is subjected to examination and cross-examination for such state of mind, bonafide need cannot be held to be established for the commercial premises unless the facts stated in the petition for eviction are actually admitted by the tenant which the respondent no. 1 denies.
5. Hon'ble Supreme Court of India, while editing legislation in "Satyawati Sharma Vs. Union of India", reported as (2008) 5 SCC 287 (Supra), to avoid the same from being declared unconstitutional, intended limited scope as expressed in Para 42 of the judgment and not the wider scope for which the summons in Form prescribed in Schedule III have been served on the respondents. The wider scope would not be in consonance with the judgment of Hon'ble Supreme Court of India and would amount to ascertain the power of legislation. Such asserting for powers is against the basic structure of the separation of powers, as laid down in Constitution of India.
6. In the judgment "Satyawati Sharma Vs. Union of India", reported as (2008) 5 SCC 287 (Supra), it is considered that it allowed application for summary procedure, prescribed under Section 25 B of the 1958 Act is per inquarium to the judgment referred Kanwar Pratap Singh Vs. Rajbir Pal Anr. 10 of 40 in "Gauri Shankar Vs. Union of India", reported (1994) 6 SCC 349.
7. The judgment in "Satyawati Sharma Vs. Union of India", reported as (2008) 5 SCC 287 (Supra), if it is considered that it allowed application of summary procedure, prescribed under Section 25 B of 1958 Act, is per inquarim to the judgment rendered in "Gyan Devi Anand Vs. Jeewan Kumar", reported as (1985) 2 SCC 683, in which judgment, a constitution bench of the Hon'ble Supreme Court vis a vis Section 14 (1) (e) of 1958 Act noted in Paragraph 39 that :-
"this ground is however confined for residential premises and not available for commercial premises... we therefore, suggest that legislature may consider the advisability of making the bonafide requirement of landlord a ground for eviction in respect of commercial premises as well".
It raises the question whether something that the Constitution Bench of Hon'ble Supreme Court did not do, can the same be done by this Court by invoking Section 25 B of the 1958 Act vis a vis commercial premises.
8. That though the statute was edited by Kanwar Pratap Singh Vs. Rajbir Pal Anr. 11 of 40 rewriting Section 14 (1) (e) of the 1958 Act by virtue of judgment in "Satyawati Sharma Vs. Union of India", reported as (2008) 5 SCC 287 (Supra), neither Section 25 B was judicially reviewed vis a vis commercial premises and nore amendment was carried out in Section 25 B DRC Act of 1958 by the legislature. The said provision is not attracted. That the summary procedure provided under Section 25 B of 1958 Act is applicable only in those case where the alleged bonafide need is personal that of landlord and not for dependents of landlord and anyone else. 1958 Act creates a distinction in the need of the landlord which are :- 1. On personal need, 2. Need of dependents and 3. Need of individuals for whom the landlord hold the property, which distinction is evident from Section 25 B (1) of the 1958 Act wherein, provision of 14 (1) (e) is placed alongwith Section 14 A, 14 B, 14 C & 14 D, to interpret the same the rule of noscitur a sociis and ejusdem jenris must be applied. In the eviction petition, the petitioner has not claimed the need for himself as such benefit of Section 25 B (1) of 1958 Act cannot be availed by the petitioner.
9. That the tenanted premises falls in Khasra No. 189, which as per the Khatoni records of year 2003-05 is owned by Abdul Wahid Mohd. Umar and Kanwar Pratap Singh Vs. Rajbir Pal Anr. 12 of 40 Mohd. Shafiq. The petitioner is not the owner of the property. The petitioner has been taking rent forcibly from respondents. Copy of relevant Khasra / Khatoni record is annexed herewith and marked as Annexure 'A'.
That the petitioner has wrongly mentioned that the respondents are in joint occupation under single tenancy, in fact the respondents are joint tenants and the tenancy is joint and not single. The rate of rent of the tenanted premises is Rs. 150/- per month but the petitioner has wrongly alleged the rate of rent as Rs. 1,500/- per month. The petitioner has intentionally refused to accept the rent from respondents when the same was tendered to him personally as well as sent through money order. Therefore, the respondents were constrained to deposit the rent in the Court by way of petition under Section 27 of 1958 Act and the rent is paid upto date.
10. The petitioner is actively engaged in the business of flipping properties. The petitioner has demolished the old structure at property no. 73, Village
- Rajpura, Delhi and raised fresh construction. The petitioner has also reconstructed property no. A - 83, Village - Rajpura, Delhi and the petitioner has also owned the properties located at A - 97 and A - 98, Kanwar Pratap Singh Vs. Rajbir Pal Anr. 13 of 40 Village Rajpura, Delhi. Petitioner is running two hostels namely Garvit Hostel and Aparna Hostel which are having about 130 rooms and the same can be used by the son, daughter-in-law and grand daughter of the petitioner for the alleged bonafide need.
11. The petitioner has not placed any document / affidavit of petitioner's dependents for whom the petitioner has alleged bonafide need in support of the claim of the petitioner. The alleged need of the petitioner for having Law office for his son is baseless as the son of the petitioner is Director and he is involved in day to day activities of Aparna Girls Hostel Pvt. Ltd. In contravention of rule 48 and u/s 7 - Restriction of other employments of the BAR Council of India.
That the present eviction petition is in principal preferred for additional accommodation for the successful business of hostels which is run by the family of the petitioner.
12. That the present eviction petition has been wrongly preferred under Section 14 (1) (e) of 1958 Act and should have been preferred under Section 14 (1)
(g) of the 1958 Act. As the alleged bonafide need is based on proposed use of the tenanted property as a Law office, coaching centre, study area, cafeteria etc. Kanwar Pratap Singh Vs. Rajbir Pal Anr. 14 of 40 which will require substantial alteration and modification to the tenanted property.
As aforesaid, the respondents have mentioned in their application that the triable issued have arisen in the present eviction petition and the same dis-entitle the petitioner from the relief claimed in the petition. Therefore, the leave to defend application should be allowed.
Reply and Rejoinder to Leave To Defend Application
4. Petitioner has filed reply to the application under Section 25 B of Delhi Rent Control Act moved on behalf of respondents and by said reply he has vhementaly opposed the grounds taken by the respondents in the Leave to Defend Application. He has also filed counter affidavit to the affidavits of the respondents. The respondents have also filed rejoinder to reply by the petitioner.
Detailed arguments were heard on the leave to defend application. Both parties have also filed written arguments.
I have gone through the judicial file and considered the arguments of both parties.
Kanwar Pratap Singh Vs. Rajbir Pal Anr. 15 of 40
5. That for proving the case under Section 14 (1) (e) DRC Act 1958, the petitioner has to prove four facts which are as under :-
i) That the petitioner is owner of the rented premises.
ii) That there is landlord-tenant relationship between the petitioner and respondents.
iii) The petitioner requires the tenanted premises bonafidely for his son, Daughter-in-law and grand-daughter who are dependent upon him.
iv) That, there is no other suitable accommodation for the purpose required by the petitioner with him.
FINDINGS OF THE COURT 1. Jurisdiction of this Court
6. The respondents have contended that the Suit property was rented out to the respondents for commercial purposes. In the judgment "Satyawati Sharma Vs. Union of India" (2008) 5 SCC 287, the suit property was rented out for residential purposes but it was used for commercial purposes. The said Kanwar Pratap Singh Vs. Rajbir Pal Anr. 16 of 40 judgment also did not discuss the applicabilty of Section 25B of DRC Act to section 14(1)(e) of DRC Act in factual scenerio where property is given on rent for commercial purposes or was by itself a commercial property. The said judgment dealt with the issue of violation of Article 14 of The Constitution of India. Here in the case in hands the property was let out for commercial purposes hence petition is not maintainable under Section 14 (1)(e) of DRC Act and therefore this court does not have jurisdiction.
The Ld. Counsel for petitioner has vehemently opposed the submissions of Ld. Counsel of respondents.
I have gone through the judgment of "Satyawati Sharma Vs. Union of India" (2008) 5 SCC 287. In the said judgment though the facts are as alleged by Ld. Counsel for respondent/Applicant but no such differentitaion is created between the property let out for Residential Purpose and Commercial Purpose regarding applicability of Section 25B of DRC Act. Rather the said Judgment has eradicated the unjustified discrimination which was created between the property rented out for Residential and Commercial purpose. Having that at backdrop if the contentions of Ld. Counsel for respondents are admitted about non applicability of the section 25B on the petitions for commercial purpose then in the Kanwar Pratap Singh Vs. Rajbir Pal Anr. 17 of 40 considered opinion of this court no benefit would have been caused to the Landlords even after removing the abovsaid discrimination. Further if the intention of the Hon'ble Supreme Court was so regarding applicability of section 25B DRC Act in proceedings regarding commercial property then it would have mentioned in the judgment Itself.
Further, validity and the issue of refering the "Satyawati Sharma Vs. Union of India" (2008) 5 SCC 287 to Larger Bench of Hon'ble Supreme Court was considered and decided in the matter of "Vinod Kumar Vs. Ashok Kumar Gandhi" 262 (2019) DLT 253 (SC) and the same was rejected. The judgment Satyawati Sharma Vs. Union of India (2008) 5 SCC 287 was upheld. Therefor I do not find merits in this contention of Ld. Counsel for Respondent. It is held that this Court has jurisdiction to decide present petition and the provisions of Section 25B DRC Act 1958 are also applicable in respect of proceedings for eviction of coommercial properties.
2.The present Landlord is not entitled to take possession of the rented premises/Suit Property under Section 14(1)(e) of DRC Act
7. The Ld. Counsel for respondents has argued that all landlords are not entitled to file petition Kanwar Pratap Singh Vs. Rajbir Pal Anr. 18 of 40 under secion 14(1)(e) of DRC Act. He has drawn attention of this court on sections 14A, 14B, 14C and 14 D. He has described about the special class of persons who are entitled to petitions under sections 14A, 14B, 14C and 14 D of DRC Act. He has further argued that the said provisions fall in the same chapter and are related to the same issue thaerefore the said provisions should be interprated by following the Rules of Nociter a Sociis and Ejusdem Generis. If the said rules are applied then the case of petitioner does not fall in the ambit of special case and thus the Notice under Schedule III of DRC can also not be issued to the respondent as it is not provided for commercial properties.
In the considered opinion of this court, the rules of Nociter a Sociis and Ejusdem Generis are applicable when there is any ambiguity in the law/legal provisions. It is the basic principle of Jurispudence that if the meaning of the words is clear and there is not any ambiguity then the Law should be interpreted in its general meaning prevailing in the society. In the considered opinion of this court there in no need to apply Nociter a Sociis and Ejusdem Generis as the language of the law/legal provion is clear. Further these sections/provisions are not making special class altogether, they are describing about diffrent persons. Thus they are not making any seprate class to identify Kanwar Pratap Singh Vs. Rajbir Pal Anr. 19 of 40 it and include only similar catagory of persons into it. Further if this was the intention of the Hon'ble Supreme Court in "Satyawati Sharma Vs. Union of India" (2008) 5 SCC 287, then it must have created a special category of Landlords who were entitled to file petition under section 14(1)(e) DRC Act, but it not so.
Further the sending of notices to the respondents is a matter of procedure only. In the considered opinion of this court if the Provision under section 14(1)(e) DRC Act is made applicable in respect of commercial properties then the anciliary provisions are also applicable on the proceeding under that provion. The end of justice can not be defeated by mere procedural defects even when it is not ever declared to be not applicable on proceedings for commercial properties by The Hon'ble Supreme Court and by the Parliament.
Further the Law declared by the Hon'ble Supreme Court is Law of the Land and this court is bound to follow the said Law. Thus these contetions also of Ld. Counsel for Respondents are without merits and hence these are also rejected.
3.Finding on Only the Affidavit of the Respondent is to be seen.
Kanwar Pratap Singh Vs. Rajbir Pal Anr. 20 of 40
8. Ld. Counsel for the Respondents has argued that while deciding the Leave to Defend Application, only the affidavit of respondent is to be seen. In support of that he has relied upon "Precision Steel Vs Prem Deva Niranjan Deva Dayal" 1982 (3) SCC 270.
In the considered opinion of this Court if only the affidavit of the respondent is to be seen then in no case the Application for Leave to defend will be dismissed. Further in that case the bonafide requirement of the Petitioner will also not be considered by the court. In that eventuality whatever is pleaeded by the resondent will be treated as gospel truth. The Rule of Natural justice will also be negated to the Petitioner. No court can pronounce this kind of decision. I have gone through that judgment and there are many ifs and buts which Ld. Counsel for Respondents has not pleaded. In the said judgment it is mentioned that if in response to the Affidavit the Petioner has to produce documents to disprove the contentions raised by the respondent then Leave to Defend must be allowed. It is further perceived that the application should be allowed if it discloses triable issues. Thus every case has to be decided by considering its own facts and circumstances. The said judgment is alo distingusable on factual matrix. Further the application/affidavits of the respondents Kanwar Pratap Singh Vs. Rajbir Pal Anr. 21 of 40 have to show triable issues and the application/affidavits of respondents herein lacks the same. Hence this argument of Ld. Counsel for respondents is also meritless and therefore rejected.
4.Petitioner is not the owner.
9. Ld. Counsel for respondents has argued that the Petitioner is not the owner of the suit property. Rather the suit property falls in Khasra no. 189 which belongs to Abdul Wahid Mohd. Umer and Mohd. Shafiq. The petitioner has not produced Title Deeds. The petitioner has been taking the rent under coercion/forced circumstances.
To this Ld. Counsel for Petitioner has argued that earlier an Eviction Petition bearing no. 59369/2016 was decided between the same parties vide Order Dated 31/07/2018 wherein the petitioner was hold owner of the suit premises. He has filed certified copy of the said judgment. I have perused that judgment and in said Judgment in Para 14 the court has categorically affirmed that the Petitioner herein is the owner of the Suit Property. The Respondents herein had taken same plea in that petition also which was rejected by the Ld. Court on Mertis.
Further, admittedly the respondents are Kanwar Pratap Singh Vs. Rajbir Pal Anr. 22 of 40 paying rent to the Petitioner. Moreover it is pleaded by the respondents themselves in Para XI of their Affidavits that when the Petitioner refused to accept the Rent then the Rent was sent through Money Order and when the Rent was refused by money-order also, then the Rent was deposited in the Court under Section 27 of DRC Act.
Thus, the respondents have admitted Landlord-Tenant Relationship by their conduct. Further the respondents are themselves paying the rent to the petitioner by depositing the same in the court even when he has refused to receive the rent. Thus it can not be said that the petitioner is taking the rent under coercion. Now the respondents are estopped from taking this plea as per Section 116 of The Indian Evidence Act.
In "Rajender Kumar Vs Leelawati"
155(2008) DLT 383 it is held by the Hon'ble Delhi High Court that "The landlord is not to prove absolute ownership and he has to show that he is more than a tenant." In the present case the Petitioner has proved so. Therefore, this argument of Ld. Counsel for Respondents is against the setteled principles of Law and therefore rejected.
5.Absence of Affidavits of Beneficiaries Kanwar Pratap Singh Vs. Rajbir Pal Anr. 23 of 40
10. Ld. Counsel for respondets has further argued that the Petioner has not annexed the affidavits of beneficiaries. He has further argued that due to absence of their affidavits their state of mind can not be assessed. This argument of Ld. Counsel of Respondents is found baseless even on its face. There is not any prior condition that the affidavits of beneficiries are necessary in present proceedings. The affidavit of the Petitioner/of his Authorised Representative is sufficient. Ld. Counsel for respondents has not challenged the presence of beneficiaries. He is also not able to cast any doubts regarding the bonafide requirements of the relatives/family members of the Petitioner. Thus filing of affidavits of beneficiaies is not a condition precdent. Thereforethis contention also seems to be taken merely as a balled one and hence it is also rejected.
6.Daughter-in-Law and Grand-Daughter are not depentdents on the Petioner and the petitioner can seek the property only for his personal requirement
11. Ld. Counsel for Respondents has also argued that the Daughter-in-Law and Grand-Daughter are not depentdents on the Petioner. He has further Kanwar Pratap Singh Vs. Rajbir Pal Anr. 24 of 40 argued that the petitioner can seek the suit property only for his personal use and not for the use of his family members.
Ld. Counsel for Petitioner has vehemently opposed the present contention of Ld. Counsel for Respondents.
In "Surender Singh Vs Kamal Chand", 2018 VII Delhi 600 it is held that "requirement of member of family dependent upon the land-lord is the requirement of petitioner. Considering the social fabric the family may also include wife, husband, sister, children, married daughter, widowed daughter, her son, nephew, co-parcerners and their kith and kin".
In Section 14 (1) (e), DRC Act itself, it is mentioned that, "the premises let out for residential purposes are required bonafide by the landlord for occupation as a residence for himself or for any member of his family, dependant upon him, if he is the owner thereof." thus in the Act itself, the pemises / suit property can be required by the landlord for himself or for any member of his family, dependant upon him. Considering the social conditiones in our society it can not be said that the Grand-Daughter and Daughter-in- Law are not dependent on their Grand-Father or Father-in-Law respectively. Therefore the term family should be given a practical meaning and the need of family members is the need of the Landlord. Thus Kanwar Pratap Singh Vs. Rajbir Pal Anr. 25 of 40 these contentions are also rejected being meritless.
7.The bonafide need of the son of the petitioner is farce
12. Ld. Counsel for the respondents has asrgued that the son of the petitioner is actively participating in management of the company i.e. Aparna Girls Hostel Pvt. Ltd., which is in contravention of Rule 48 of BAR Council of India Rules.
Against this contention, Ld. Counsel for petitioner has argued that the Sh. Kanwar Ajay Singh i.e. the son of the petitioner has filed certificate of practice on Page No. 44 of the petition / documents. Till date, he is working as an Honorary Constultalt and Advisor and is attached with various NGOs and Associations. Now, he wants to start his full fledged practice as an Advocate and when he will start his full fledged practice, then he will fulfill all the requirements of law and disengage himself from other remunerative activities.
He has further argued that to get the suit property, the son of the petitioner is not expected to leave the work / business in advance. The Law can not expect the son of the petitioner to starve himself even before getting the suit property only to satisfy the Kanwar Pratap Singh Vs. Rajbir Pal Anr. 26 of 40 respondent. In support of that, he has relied upon "Pardeep Kumar Tyagi Vs. Bimla Tyagi", 2012 VII AD, Delhi 71, "Saroj Malik Vs. O. P. Gupta", 2015 (1) CLJ 351 and "Raghunath G. Vs. Chagan Lal", 1999 (8) SCC 1, wherein it is held that the landlord can start business for additional income and to keep himself busy even if he has income from other sources. He has also relied upon 2020 VI AD Delhi 338 and 2019 VIII AD Delhi 280 and 1999 (8) SCC, wherein it is held that, "it is not expected from landlord to procure licences and make preparations in advance before eviction of the tenant."
In the considered opinion of this Court, the arguments addressed by Ld. Counsel for petitioner are more convincible. No person is expected to disengage himself from other remunerative activities, even before starting the new venture as in the presnet case, the son of the petitioner wants to start full-fledged Law practice as an Advocate. In "Ram Babu Aggarwal Vs. Jay Kishan" Dass 2009 (2) RCR 455, The Hon'ble Apex Court observed as under:-
"However as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition was that in the petition the landlord has alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held Kanwar Pratap Singh Vs. Rajbir Pal Anr. 27 of 40 that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new business even if they do not have experience in the new business, and sometimes they are successful in the new business also."
In view of the above considerations and case-law, I do not find merits in the present contention of Ld. Counsel for respondents and therefore it is rejected.
8.The petitioner is in business of flipping properties and the alleged bonadife need is that of additional accommodation.
13. Ld. Counsel for respondents has further argued that the petitioner is actively engaged in flipping properties or buying buildings i.e. selling/commercializing business. The petitioner has sold shop in property no. A - 83, raised construction for running a hostel for boys on property Nos. 97 & 98. The petitioner has not disclosed any reason that why structure constructed on property nos. 97 & 98 cannot Kanwar Pratap Singh Vs. Rajbir Pal Anr. 28 of 40 be used for the requirements of the petitioner even when the structure was made only in the year 2017 itself.
Ld. Counsel for petitioner has vehemently opposed the arguments of Ld. Counsel for respondents. He has argued that the previous eviction petition was filed as there was need to accommodate administrative staff of the hostel which was being run from the property adjoining to the tenanted / suit property. The Ld. Previous Court has concluded in the previous petition, that the requirement was for additional accommodation and therefore the leave to defend was granted and the petition was dismissed but the need of the petitioner in that case also was justified and due to this reason, the petitioner had to purchase property no. A - 97 & 98, wherein the administrative staff is accommodated and further hostel rooms have been constructed as per the requirement.
The petitioner herein has purchased the said properties after taking a loan of Rs. 1.7 crore, which confirms that the petitioner was in urgent need of the expansion of hostel as well as to accommodate the administrative staff. Thus, according to him the previous urgent need of petitioner is satisfied only by purchasing the additional aforesaid properties. The present need of the son of the petitioner to open / start Kanwar Pratap Singh Vs. Rajbir Pal Anr. 29 of 40 his Law office is a new and urgent one. The further requirement of daughter-in-law and grand-daughter of the petitioner to start their own venture i.e. business of running a coaching institute and library is also a new one. The daughter-in-law and grand daughter of the petitioner are competent enough to start the said business. He has further argued that simply because the petitioner is successful in running hostle business, all his family members should sit idle is not legally, morally and socially acceptable. No one can be compelled to sit idle at home and the ladies should not be compelled to just engage in housoehold chores when they are educated and members of business family.
He has further argued that the property no. 73 is already being used and is not available for the bonafide needs as pleaded of the petitioner. Furthermore, the property no. 73 belongs to Late Sh. Surat Singh i.e. the father of the petitioner and Garvit Hostel is being run therefrom with the permission of other co-owners and petitioner alone cannot take decision regarding the said property. The construction of the said property is also very old and the needs of the petitioner cannot be fulfilled from that property.
He has further stated that the petitioner does not have any concern with property no. A - 83, Kanwar Pratap Singh Vs. Rajbir Pal Anr. 30 of 40 which is already sold by Sh. Ajay about 10 years back.
He has further argued that the property no. A - 97 is the ground floor which was purchased in the name of Kanwar Ajay Singh and A - 98 is the first floor, which is purchased by M/s Aparna Hostels Pvt. Ltd. There was need to purchase the said properties, as there was no space to accommodate the administrative staff in the property no. 94-95, wherefrom the hostel is being run for which the earlier eviction petition was filed. The said properties were purchased to meet the demand for extra rooms and to accommodate the administrative staff of the hostel. The property no. A - 97 & 98 have been purchased and reconstructed as a hostel and are being utilised by Aparna Girls Hostel Pvt. Ltd. And the said property is not suitable for the need of the petitioner, as pleaded in this petition.
He has further argued that it is purely the choice of the petitioner to choose as to which of the available properties is suitable for his needs and he cannot be dictated in this regard by the tenant. The choice and suitability of the property, as pleaded by the petitioner, has to be believed and respected. In support of that, he has relied upon "Veeran Wali Vs. Kuldeep Rai", 2010 (2) RCR (Rent) 571, "Asiya Jamil Vs. Canara Bank", 2017 IX AD Delhi 499, "Manika Rani Ghosh Vs. Dharwinder Kaur", 2013 Kanwar Pratap Singh Vs. Rajbir Pal Anr. 31 of 40 (I) AD Delhi 146, "M/s Sait Nagjee Purushottam Vs. Vimla Bai Prabhulal" (2005) SCC 8 and "Dinesh Kumar Yusuf Ali", 2010 XI AD (SC) 585, wherein, it is held that the landlord has choice to choose place of busines suitable for him and has complete freedom in this matter. The Court is not to examine viability of business from the tenanted premises to assess its profitability. It is not open to the Court or tenant as to how and what for, he should use the premises. Need of the petitioner is presumed to be genuine and bonafide. Tenant cannot dictate other property for use. It is the prerogative of the landlord as to in which location, he prefers to run business and Law should not and cannot prevent such preference by landlord to meet his requirement. The arguments addressed by Ld. Counsel for petitioner are found more convincible than the arguments addressed by Ld. Counsel for respondent. The Ld. Counsel for respondent has failed to produce any cogent proof of docouments by which it is proved that the petitioner is in the business of flipping properties. On the other hand, the petitioner has convinced this Court that the properties are purchased by the petitioner only to meet the earlier urgent demands of the petitioner. The Law cannot expect a person to not to spread his business when he has the capacity to do the same. By way of purchasing the additional properties, the petitioner has Kanwar Pratap Singh Vs. Rajbir Pal Anr. 32 of 40 accommodated his staff and he has also managed to get more rooms for the hostel being run by him / his family members. Therefore, it cannot be held that the petitioner has malafidely filed present petition only to get evict the respondents and to get additional property or that the petitioner is in the business of flipping properties.
9.The petiton is actually a petition under Section 14 (1) (g) of DRC Act, preferred under the garb of Section 14 (1) (e) of DRC Act
14. Ld. Counsel for respondents has argued that the petition should have been filed under Section 14 (1) (g) of DRC Act, as there is small tin shed in dilapidated condition in the Suit Property. To meet the requirements of the petitioner, the petitioner has to demolish the tin shed and to reconstruct the building. However, the petitioner has deliberately filed the petition under Section 14 (1) (e) of DRC Act for his bonafide requirement.
I have gone through the Site Plan annexed with the petition. There is a small tin shed in the suit property and the remaining portion is open plot. The Ld. Counsel for respondents has not pleaded that the tin shed was constructed after taking permissions from the concerned Government departments. On bare Kanwar Pratap Singh Vs. Rajbir Pal Anr. 33 of 40 perusal of the Site Plan, it is clear that a temporary tin shed is made by the respondents in the suit property. The respondents have themselves contended that the Tin Shed is in dilapidated condition. Further the conditione of the Tin Shed can be considered from the fact that a "Kabari" business is being run by the respondents from the Suit Property. In that eventuality, in the considered opinion of this Court, there is no requirement to file petition under Section 14 (1) (g) of DRC Act. The petition filed under Section 14 (1) (e) of DRC Act is sufficient for the need / prayer of the petitioner. Therefore, I do not find merits in the present contention of Ld. Counsel for respondent and therefore, it is also rejected.
10.Section 25 B (7) is applicable.
15. Ld. Counsel for respondents has argued that if the controller refuses to grant leave to contest the applicaiton for eviction, than the procedure for non- obstante clause prescribed in Sub Section (7) of 25 B of DRC Act will be applicable and the controller has to hold an enquiry and for which the controller has to follow the procedure of the Court of Small Causes, including recording of evidence.
I have considered the submissions of Kanwar Pratap Singh Vs. Rajbir Pal Anr. 34 of 40 Ld. Counsel for respondents.
As per Sub Section 4 of Section 25 B "the tenant on whom the summons is duly served (whether in the ordinary way or by registered post) specified in the III Schedule shall not contest the prayer for eviction from the premises, unless he files an affidavit, stating the grounds on which he seeks to contest the application for eviction and obtains leave from the controler as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the stateament made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid."
Sub Section 5 reads as "the controller shall give the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession of the premises on the ground specified in Clause (c) of the proviso to Sub Section 1 of Section 14, or under Section 14 A."
Sub Section 6 reads as "where leave is granted to the tenant to contest the application, the controller shall commence the hearing of the application as earyl as possible."
Sub Section 7 reads as "notwithstanding Kanwar Pratap Singh Vs. Rajbir Pal Anr. 35 of 40 anything contained in Sub Section 2 of Section 37, the controller shall, while holding an inquiry in a proceeding to which this chapter applies, follow the practice and procedure of a Court of small causes including the recording of evidence."
As per the rules of interpretation, the Section has to be read as a whole and not in peacemeal to gather the true intention of the legislature. After going through the whole Section 25 B, it is clear that the application for leave to defend is to be filed under Section 25 B 4 of DRC Act. If it is not filed, then it will be presumed that the case of the landlord is admitted by the respondent and the applicant shall be entitled to an order for eviction on the grounds mentioned in the petition.
Further, if the leave to defend application discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in Clause C of Proviso to Sub Section 1 of Section 14, or under Section 14 A, then the controller is supposed to hold an inquiry and the procedure for the same may be the practice and procedure followed by the Court of small causes including the recording of evidence.
Thus, it is only if the leave to defend application is allowed, then the controller has to follow Kanwar Pratap Singh Vs. Rajbir Pal Anr. 36 of 40 the procedure of Court of small causes and if the leave to defend application is dismissed then the leave to defend application comes as non-est and the petitioner is straightway entitled for eviction order as provided in Sub Section 4 of Section 25 B of DRC Act.
Furthermore, the filing of application alongwith supporting affidavit and its disposal is a kind of inquiry itself and no further inquiry is required to further pass an order of eviction even after dismissal of leave to defend application. With these observations, it is concluded that the present contention also of Ld. Counsel for respondent is not tenable at Law and therefore it is rejected.
Conclusion
16. The petitioner has categorically taken the plea that he dose not have any other suitable premises for the business of his family members as mentioned in the Petition. In "Mohd. Ayub Vs Mukesh Chand (2012) 2 SCC 155 the Hon'ble Apex Court" held as under :-
"That the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having moved out to another place. We are mindful of the fact that whenever the tenant is asked to move Kanwar Pratap Singh Vs. Rajbir Pal Anr. 37 of 40 out of premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for time. But in our opinion, in the facts of this case that circumstances can not be sole determinative factor."
Further, in "Vidhya Dhari Bhagat Vs M/s Allahbad Law Journal Co. Ltd.", the Hon'ble Supreme Court has held that "If the tenant is evicted under section 14 (1) (e) and the premises are not occupied by the Landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining the possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controler under sub section (1) of section 19 of the DRC Act or the possession of such premises is transferred to another person for reasons which do not appear to the Controler to be bonafide, the Controller may, on an application made to him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit under Section 19(2) of DRC Act.
Thus, if the respondents are doing Kanwar Pratap Singh Vs. Rajbir Pal Anr. 38 of 40
business in the rented premises for long time then the petitioner can not be forced to remain out of his own premises even when he has genuine need of the same for starting business of his family members who are dependent on him.
In view of aforesaid considerations, facts and circumstances, the petitioner has succeeded in proving that he is landlord and the respondents are his tenants in respect of the suit property i.e. property no. 82, Village - Rajpura, Gur Mandi, Delhi - 110007. He has further proved the landlord-tenant relationship between him and the respondents. He has also proved that the suit property is required for the bonafide requirement of his son namely Kanwar Ajay Singh, his Daughter-in-Law Smt. Kusum Chaudhary and his grand-daughter Ms. Aparna Chaudhari, as alleged by him in the petition. He has also proved that the said familiy members are dependent on him and there is no other suitable property to fulfill the requirements of plaitiff/his family members.
On the other hand, the respondents have failed to putforth any triable issues so that they are entitled to leave to defend application, therefore the application under Section 25 B (4) i.e. the Leave to Defend Application of respondents is hereby dismissed and the petition of the petitioner is allowed.
Kanwar Pratap Singh Vs. Rajbir Pal Anr. 39 of 40
In consequence of the same the
Respondents are directed to vacate the rented premises i.e property no. 82, Village - Rajpura, Gur Mandi, Delhi - 110007. It is hereby clarified that the Landlord/Petitioner shall not be entitled to obtain possession of the rented premises/suit property before the expiration of six months from the date of this order as per section 19(7) of DRC Act.
Announced in the open Court Digitally signed by VIRENDER through Video Conference VIRENDER SINGH th SINGH Date:
On this 26 Day of August, 2021 2021.08.26 16:47:46 +0530 (VIRENDER SINGH) ACJ-CUM-CCJ-CUM-ARC NORTH DISTRICT, ROHINI COURT, DELHI Kanwar Pratap Singh Vs. Rajbir Pal Anr. 40 of 40