Delhi High Court
Sunil Kumar Goyal vs Harbans Singh on 18 July, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th July, 2017
+ RC.REV. 300/2017
SUNIL KUMAR GOYAL ..... Petitioner
Through: Mr. Zakir Hussain, Adv.
Versus
HARBANS SINGH ..... Respondent
Through: Mr. Abhay Dixit, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Caveat No.602/2017
1. The counsel for the caveator/respondent appears.
2. The caveat stands discharged and disposed of.
CM No.23370/2017 (for exemption)
3. Allowed, subject to just exceptions.
4. The application is disposed of.
RC.REV. 300/2017 & CM No.23369/2017 (for stay)
5. This Rent Control Revision Petition under Section 25B(8) of the
Delhi Rent Control Act, 1958 impugns the order (dated 24 th March,
2017 of the Court of Rent Controller (West), Tis Hazari Courts, Delhi
in E No.25615/2016 filed by the respondent/landlord under Section
14(1)(e) of the Act) of dismissal of the application filed by the
petitioner/tenant for leave to defend and consequent order of eviction
of the petitioner/tenant from shop No.1 in property No.C-147, Clock
Tower, Hari Nagar, New Delhi.
6. The counsels have been heard.
7. The counsel for the petitioner/tenant has argued that the
respondent/landlord suppressed from the petition for eviction that the
RC.REV. 300/2017 Page 1 of 11
term of the lease of another shop let out by the respondent/landlord in
the same property was about to expire two months after the institution
of the petition for eviction and the respondent/landlord has re-let the
said shop and which falsifies the need/requirement pleading which the
eviction of the petitioner/tenant from the shop in his tenancy was
sought.
8. The counsel for the respondent/landlord states (i) that the
respondent/landlord is the owner/landlord of only two shops i.e. one in
the tenancy of the petitioner herein and the other which was let out
two years back to one Mr. Naresh Sindhwani at the rate of Rs.10,000/-
per month; (ii) that it was a term of the agreement of letting out to Mr.
Naresh Sindhwani that the lease after two years shall be renewed for
another period of two years; (iii) that the said shop was let out at a rent
of Rs.10,000/- per month and the lease thereof in accordance with the
agreement at the time of letting has been renewed for a further period
of two years at the rate of rent of Rs.12,000/- per month; (iv) that the
petitioner/tenant is an old tenant since the year 1987 paying rent of
Rs.2,000/- only; (v) that the respondent/landlord is entitled to arrange
his affairs to reap maximum return from his property and to seek
eviction of a tenant in a low rent yielding shop rather than of a tenant
in a high rent yielding shop.
9. The counsel for the petitioner/tenant states that the
petitioner/tenant in the application for leave to defend also disputed
the bona fide requirement pleaded by the respondent/landlord and
contends that the respondent/landlord does not need the shop in the
tenancy of the petitioner/tenant. It is stated that the act of the
RC.REV. 300/2017 Page 2 of 11
respondent/landlord of letting out / renewing the lease of another shop
owned by him nullifies the requirement pleaded. It is further
contended that if the respondent/landlord had any bona fide
need/requirement of a shop for carrying on his own business, the
respondent/landlord, instead of bothering about the rate of rent, would
have got the other shop vacated and would have commenced his
business therefrom. It is further contended that from the suppression
of the imminent expiry of the term of the lease of the other shop, the
plea of bona fide requirement of the shop in tenancy of petitioner /
tenant is nullified.
10. I have considered the aforesaid contentions.
11. It cannot be lost sight of that according to the petitioner / tenant
also, on the date of institution of the petition for eviction, the other
shop was in occupation of another tenant. It is thus not as if the other
shop already stood vacated and was concealed from the petition for
eviction. The plea of concealment has to be judged in the context of
the agreement of the respondent / landlord with the tenant in the other
shop for renewal of the term of lease of the other shop. The question
for adjudication is whether in such facts, the concealment was such so
as to warrant dismissal of the petition for eviction or grant of leave to
defend to the petitioner.
12. Supreme Court in Bhairab Chandra Nandan Vs Ranadhir
Chandra Dutta (1988) 1 SCC 383 held that once the facts which are
alleged to have been concealed have come before the Court and the
Court has had occasion to consider the same and after considering the
same finds in favour of the landlord, the petition for eviction cannot be
RC.REV. 300/2017 Page 3 of 11
dismissed on the ground of concealment. Similarly in M.L.
Prabhakar Vs. Rajiv Singhal (2001) 2 SCC 355, qua the plea of
concealment / suppression, it was held that the fact that the landlord
has another accommodation would not be fatal to the eviction
proceedings if both the parties understood the case and placed
materials before the Court and case of neither party was prejudiced.
Accordingly, it was held that though the landlord in that case had not
mentioned about the other premises but the material in respect of the
other two premises had come before the Rent Controller as well as
before the High Court and no prejudice had been caused and the
parties had squarely dealt with the question.
13. This Court also in Harbant Singh Vs. Vinod
Sikari 189 (2012) DLT 215 held that unless there is concealment of
fact which is so vital to the bearing of the petition in issue, it would
not amount to concealment. It was reiterated that concealment of
accommodation which was not available or suitable cannot be a
ground for non-suiting the landlord or granting leave to defend.
14. It is in the aforesaid context that it becomes relevant that the
other shop, on the date of the institution of the petition for eviction,
was admittedly let out. Once the same is admittedly not available
today also, the petitioner / tenant cannot draw any mileage from
concealment.
15. The next question to be considered is, whether the respondent /
landlord can be denied an order of eviction against the petitioner /
tenant paying a rent of Rs.2,000/- per month for the reason of having
RC.REV. 300/2017 Page 4 of 11
renewed the lease of another shop by enhancement of rent thereof
from Rs.10,000/- to Rs.12,000/- per month.
16. The premises, rent whereof is in excess of Rs.3,500/- per
month, are not within the ambit of Rent Act and occupation by the
tenant thereof is a matter of contract with the landlord. Thus, it was
open to the respondent / landlord to have the other shop let out at a
rent of Rs.10,000/- per month vacated after the term of lease thereof
expired after the institution of the petition for eviction.
17. The question however for adjudication is, whether for the
reason of having not done so, the respondent / landlord can be said to
have had "other reasonably suitable accommodation" within the
meaning of Section 14(1)(e), of which the respondent / landlord had
not availed of.
18. Supreme Court in Prativa Devi Vs. T.V. Krishnan 1996 (5)
SCC 353 held that the landlord is the best judge of his requirement; he
has a complete freedom in the matter, it is no concern of the Courts to
dictate to the landlord how and in what manner he should live or to
prescribe for him a standard of their own. Similarly in M.L.
Prabhakar (supra) it was held that suitability has to be seen from the
convenience of the landlord and his family members and on the basis
of the totality of the circumstances including their profession,
vocation, style of living, habits and background.
19. Mention may also be made of Shiv Sarup Gupta Vs. Dr.
Mahesh Chand Gupta (1999) 6 SCC 222 laying down that the term
bona fide refers to a state of mind and a requirement in the sense of
felt need which is an outcome of a sincere, honest desire, in
RC.REV. 300/2017 Page 5 of 11
contradistinction with a 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 his family. It was held that the Court should place
itself in the armchair of the landlord and then ask the question to itself
whether in the given facts substantiated by the landlord, the need to
occupy the premises can be said to be natural, real, sincere, honest and
that if the answer is in the positive, the need is bona fide. It was
further held that the Court would permit the landlord to satisfy the
proven need by choosing the accommodation which the landlord feels
would be most suited for the purpose; the court would not in such a
case thrust its own wisdom upon the choice of the landlord by holding
that not one but the other accommodation must be accepted by the
landlord to satisfy his need. The concept of bona fide need was held
to require a practical approach instructed by realities of life. An
approach either too liberal or too conservative or pedantic must be
guarded against. It was yet further held that wherever another
accommodation is shown to exist as available, then the Court has to
ask the landlord why he is not occupying such other available
accommodation to satisfy his need; if the landlord convinces the Court
that the alternative 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, then the petition for eviction under Section 14(1)(e) has to
succeed. Convenience and safety of the landlord and his family
members were held to be relevant factors. It was held that the Court
must keep in mind the profession or vocation of the landlord and his
RC.REV. 300/2017 Page 6 of 11
family members, their style of living, their habits and background
wherefrom they come.
20. Applying the aforesaid principles, I have wondered i) whether
the choice of the respondent / landlord in the present case to satisfy his
requirement for commercial premises by evicting the petitioner /
tenant paying a rent of Rs.2,000/- per month and not the tenant in the
other shop paying a rent of Rs.10,000/- per month and which other
tenant has promised to increase the rent to Rs.12,000/- per month can
be interdicted by the Court; and, ii) whether the other shop fetching a
rent of Rs.10,000/- / Rs.12,000/- per month as against the rent of
Rs.2,000/- per month being paid by the petitioner / tenant can be held
to be reasonably suitable alternative accommodation within the
meaning of Section 14(1)(e) of the Act for it to be said that the
respondent / landlord is not entitled to an order of eviction against the
petitioner / tenant paying Rs.2,000/- per month for the reason of
having option to evict the tenant in the other shop paying Rs.10,000/- /
Rs.12,000/- per month.
21. Applying the aforesaid dicta, of the comparatively recent times,
of the Supreme Court, in my opinion both the questions aforesaid have
to be answered in favour of the respondent / landlord and against the
petitioner / tenant.
22. If the Courts have been held to be not entitled to interfere with
the choice of the landlord as to which of the two tenants he wants to
evict and if it has been held that the tenant cannot be heard to say that
the landlord instead of evicting him should evict the other tenant, then
I fail to see how the law can be different when the choice of the
RC.REV. 300/2017 Page 7 of 11
landlord is guided by economic / monetary considerations as in the
present case than when the choice is guided by choice of the premises
as in the aforesaid cases. The factors of convenience and safety of the
landlord and his family members, profession or vocation of the
landlord and his family members, their style of living, their habits and
background wherefrom they come, on the anvil of which the Courts in
the dicta aforesaid have held as aforesaid, would in my opinion
equally apply to a choice guided by monetary / economic
considerations.
23. The respondent / landlord in the present case has been found to
be in requirement of the premises for the reason of being unemployed
for the past few years and having no source of income and requiring a
commercial premises to set up his own business. Such a landlord, for
the benefit of himself and his family members, is certainly entitled to
choose to file a petition for eviction against a tenant paying rent of
Rs.2,000/- per month and not against a tenant paying rent of
Rs.10,000/- / Rs.12,000/- per month.
24. I find that this Court as far back as in Freddy Fernandes Vs.
P.L. Mehra ILR 1973 Delhi 682 noticed that the landlord had an
economic reason why he did not want to occupy the Jangpura house in
preference to the Nizamuddin house. The desire to seek economic
gain was held to be legitimate and not amounting to making the need
of the landlord mala fide.
25. I would be failing in my duty if do not mention Amarjit Singh
Vs. Smt. Khatoon Quamarain (1986) 4 SCC 736 holding that if the
landlady could have reasonable accommodation after her need arose
RC.REV. 300/2017 Page 8 of 11
and she by her own conduct disentitled herself to that property by
letting it out for higher rent, she would be disentitled to evict her
tenant on ground of her need.
26. However it cannot be lost sight of that the Rent Acts are statutes
enacted in a different era and govern human relationships and have to
necessarily evolve with the times. There indeed has been a perceptible
shift in the interpretation of the various provisions of the Rent Acts in
the last about 20/30 years, so much so that in Satyawati Sharma Vs.
Union of India (2008) 5 SCC 287, Section 14(1)(e) of the Act which
as per its express language permitted order of eviction to be passed
thereunder only with respect to the premises let out for residential
purposes, has been held to be violative of doctrine of equality
embedded in Article 14 of the Constitution of India insofar as it
discriminates between the premises let for residential and non
residential purpose when the same are required bona fide by the
landlord for occupation for himself or for any of his family members
dependent upon him and the words „let for residential purposes‟ have
been struck down therefrom. Reference in this regard can also be
made to Raghunandan Saran Ashok Saran (HUF) Vs. Union of
India (2002) 95 DLT 508 striking down Section 6 of the Rent Act.
Civil Appeal no.6183/2002 titled Vishwant Kumar Vs. Union of
India was dismissed as abated on 22nd April, 2009. In the same vein,
I am of the opinion that the dicta in Shiv Sarup Gupta supra of the
year 1999 will prevail over the dicta of the year 1987 in Amarjit
Singh supra. Following the dicta in Shiv Sarup Gupta supra while
RC.REV. 300/2017 Page 9 of 11
construing the suitability of the alternative premises for the landlord,
economic considerations will also have to be taken into consideration.
27. I find that this Court in Om Prakash Bajaj Vs. Chander
Shekhar (2003) 67 DRJ 674 to have held that suitability of the
alternative premises cannot be determined by mere counting the rooms
but has to be determined keeping in view the totality of the facts, the
nature of need pleaded by the landlord, his and his family's standard
and style of life and the purpose to which the landlord wants to
actually put it after coming it into possession thereof. The respondent
/ landlord who it is not disputed has no other source of income cannot
be compelled to deprive himself of the rent being earned from the
other shop of Rs.10,000/- / Rs.12,000/- per month and to starve
himself and his family members. It is well known fact of life that
establishing a business and earning handsomely from it has a gestation
time and it cannot be expected that the respondent / landlord after
evicting the tenant paying Rs.10,000/- / Rs.12,000/- per month and
establishing his business from the other shop would immediately start
earning an equivalent amount.
28. As far as the challenge to the requirement pleaded is concerned,
the learned Rent Controller has for reasons stated found that the denial
by the petitioner/tenant in the application for leave to defend of the
requirement of the respondent/landlord to earn from the shop in the
tenancy of the petitioner by commencing the business of selling
Patanjali products therefrom was without any basis and the
petitioner/tenant has been held to be not entitled to interfere with the
said requirement of the respondent/landlord.
RC.REV. 300/2017 Page 10 of 11
29. The counsel for the petitioner/tenant has also argued that the
petitioner/tenant is a protected tenant and the protection should
continue.
30. The protection from eviction afforded under the Delhi Rent
Control Act is subject to grounds for eviction as stipulated therein
being made out. Once, ground for eviction in accordance with the
procedure prescribed is found to have been made out, the tenant
cannot thereafter be heard to state that he is still entitled to protection
from eviction. The legislature itself has provided for the summary
consideration of the grounds of eviction of the requirement of the
tenancy premises for own use and applying the principles of
consideration of leave to defend the order of the learned Rent
Controller of dismissal of the application for leave to defend is found
to be in accordance with law.
31. No ground for interference with the order of eviction is thus
made out.
32. The petition is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 18, 2017 „bs/gsr‟..
RC.REV. 300/2017 Page 11 of 11