Delhi District Court
Smt. Raj Kumari W/O Late Sh. Tilak Raj vs Sh. Satinder Pal Singh Ahuja on 17 September, 2012
1
IN THE COURT OF Ms. VEENA RANI, ADDITIONAL RENT
CONTROLLER, PATIALA HOUSE COURTS, NEW DELHI
DISTRICT, NEW DELHI
Eviction Petition No:14/2011
Smt. Raj Kumari W/o Late Sh. Tilak Raj
R/o 820, Baba Khadak Singh Marg,
New Delhi110001 .....Petitioner
Versus
Sh. Satinder Pal Singh Ahuja
S/o Late Sh. Pratap Singh,
148(2/3rd Front portion),
Bhagat Singh Market,
New Delhi110001
AND ALSO AT
3, Marine Chambers,
43, Marine Lines,
Mumbai400020 .....Respondent
ORDER
1. Vide this order I shall decide the application of the respondent under section 25B of Delhi Rent Control Act, 1958, for grant of leave to defend the petition of the Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 2 petitioner on merits. Briefly stated the facts of the present petition are as under:
2. Petitioner/Raj Kumari has filed the present petition u/s 14 (1)(e) r/w Section 25 B of Delhi Rent Control Act, 1958 for the eviction of the tenant. The case of the petitioner is that she is the owner of property No:148, Bhagat Singh Market, New Delhi110001. It is averred that originally the above mentioned property was leased out to Late Sh. Gian Chand by the L&DO vid lease deed dt.911963 and after the death of original lessee his widow Smt. Kaushalaya Devi sold the tenanted property jointly to Sh. Gian Chand Kalra and Sh. Vijay Kumar Kalra vide sale deed dt.1111971. It is further averred by the petitioner that Sh. Gian Chand Kalra unfortunately expired on 21121992 and he left behind a Will wherein he bequeathed his share in the said property in favour of the petitioner, thus , the petitioner inherited onehalf undivided share in the said property along with her brother Sh. Vijay Kumar Kalra and accordingly the share left behind by Sh. Gian Chand Kalra was mutated in their name by the LIDO on 762001. It is stated that the brother of the petitioner, Sh. Vijay Kumar Kalra , Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 3 relinquished his share in the said property in favour of the petitioner vide Relinquishment Deed dt.10092001 registered with Sub Registrar. The L&DO had also Mutated the share relinquished by Sh. Vijay Kumar Kalra in the name of the petitioner vide letter dt.09092004.
3. It is averred by the petitioner that she is the landlady of the property No:148, Bhagar singh Market, New Deli and the respondent is a tenant in the demised property. It is stated that petitioner bonafide requires the suit property for herself and her daughter dependent upon her for commercial purposes, who has retired from Department of Statistics and she is a graduate and obtained a diploma in Secretarial Course from YMCA. It is submitted by the petitioner that her son is in the service of Government of India and has been allotted an official accommodation at 820, Baba Khadak Singh Marg, New Delhi. The petitioner along with her said daughter is residing with her son.
4. It is stated by the petitioner that she and her daughter are unemployed and both of them have the time, expertise and they required investment for the business of Computer Job Work cum Cyber Cafe.
Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 4
5. It is averred that back portion of shop No:148 has been let out to Sh. Manjeet Singh and two third front portion of the shop has been let out to the respondent for commercial purposes as the shop is situated in the commercial area, therefore, the same is ideally located and appropriate for the business for Computer Job Work Cum Cyber Cafe.
6. It is submitted by petitioner that she and her daughter required the suit property for running their business of Computer Job Work Cum Cyber Cafe as they have no other accommodation available for running their business.
7. It is averred by the petitioner that earlier she had filed an eviction petition u/s 14 D of the Delhi Rent Control Act against the defendant which was subsequently withdrawn by her and court had also given her liberty to file fresh petition. Hence, the present petition u/s 14(1)(e) of DRC Act is filed by the petitioner.
8. Respondent filed leave to defend application to the present petition of the petitioner and stated that premises in question is not bonafide required by the petitioner for herself and for her daughter. It is stated that prior to the Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 5 filing of the present petition, the petitioner had already filed five petitioner i.e. 14(1)(a) 14(1)(b), 14(1)(j), 14(1)(k) and 14(1)(d) r/w section 25 B of the Delhi Rent Control Act, 1958.
9. It is stated by the respondent that the present petition of the petitioner is without any cause of action and based on fabricated, frivolous, self created grounds without any need or requirement and is totally false. It is submitted that tenanted property is not required by the petitioner bonafidely and she has no intention to carry out any business in the tenanted property. It is stated that present petition is motivated and the past conduct of the Petitioner alone shows that the petitioner wants to evict the respondent by adopting all means. It is submitted by the defendant that the son and daughter of the petitioner are not dependent upon her as the son of the petitioner is employed in Government of India and getting a handsome salary and is admittedly he is unmarried. The age of the daughter of petitioner is 60 years and had retired from Department of Statistics and getting a handsome pension and other benefits, therefore, there is no requirement/necessity or need of any kind of the Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 6 petitioner and the petition is liable to be dismissed. Defendant stated that main motive of the petitioner is to get evict the respondent from the tenanted property and sold the same to buyers as well as to get increased the rent arbitrary as the intention of the petitioner is clear from the notice sent by her on 11122002 thereby an illegal demand of Rs.25,000/ per month has been claimed by the petitioner.
10. Petitioner filed reply to the application of the respondent for leave to defend u/s 25B of Delhi Rent Control Act, 1958 wherein she has reiterated the averments made in the main petition u/s 14(1)(e) of DRC Act and denied the allegations made by the respondent in his application. Petitioner reiterated that tenanted property is bonafidely required by her and her daughter for commercial purposes. Petitioner denied that her claim is not bona fide or same is false , frivolous or vexatious or has been made to achieve any oblique or ulterior motive. Petitioner further denied that she has any other premises available for her business or that she has no intention to carry out any business. It is denied by petitioner that her daughter is not dependent upon her for business Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 7 accommodation. Petitioner further denied that she has ever approached the respondent or any other person for sale or letting out the suit property.
11. Respondent filed rejoinder to the reply of the petitioner and reiterated the averments made in the leave to defend application.
12. I have heard the argument at bar and perused the record carefully.
13. Chapter III A was inserted in the Act by Act 18 of 1976 with effect from December 1, 1975 which contains three sections. Section 25B, appears in that chapter and provides for summary trial of certain applications. We are concerned here with subsections (4) and (5) of the said provision, which read thus : "S.25B Delhi Rent Control Act, 1958::: Special procedure for the disposal of applications for eviction on the ground of bona fide requirement." (4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 8 seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement 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.
(5) The Controller shall give to 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 subsection (1) of Section 14, or under Section 14A."
A plain reading of the above provisions, shows that subsection (4) precludes a tenant from contesting an eviction petition filed against him unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller. It further provides that in default of the tenant's appearance in pursuance of the summons or his Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 9 obtaining leave to contest the eviction petition, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction of the tenant on the ground mentioned in the eviction petition. Subsection (5) obliges the Controller to grant leave to contest the eviction petition 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 (e) of the proviso to subsection (1) of Section 14 or under Section 14A. The facts disclosed in the affidavit should not be vague or imprecise, they should be clear and definite, and should prima facie make out the ground stated in support of the application seeking leave to contest the eviction petition.
14.WHETHER THE ISSUE OF THE OWNERSHIP OF THE PETITOINERS A TRIABLE ISSUE ? (NO) The respondenttenant has raised the issue of ownership. The word "owner" has not been defined in the Act and has also not been defined in the Transfer of Property Act. Ordinarily, the concept of ownership may Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 10 be absolute ownership but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State and in this view of the matter it could not be thought of that the Legislature when it used the term "owner" in the provision of S. 14(1)(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant In this context, what appears to be the meaning of the term "owner" is visavis the tenant i. e. the owner should be something more than the tenant. (see AIR 1987 SUPREME COURT 2028 "Shanti Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 11 Sharma v. Ved Prabha") This term came up for consideration before the Delhi High Court and it was also in reference to S. 14(1)
(e) and it was held by the Hon'ble Delhi High Court in T. C. Rekhi v. Smt. Usha Gujaral, 1971 Ren CJ 322 at p. 326 as under :
" To describe some one as owner, and perhaps even as an absolute owner of property is to say two things : it is to assert that his title to the property is indisputable and that he has all the rights of ownership allowed by the legal system in question."
In the present case, it is not required by the petitioner to prove that she is the owner of the property which when she succeeded in showing prima facie that she is more than a landlady of the rented premises. Hence, in my considered view, the issue of ownership is not a triable one.
15.WHETHER THE ISSUE OF THE BONAFIDE REQUIREMENT A TRIABLE IN THE PRESENT CASE ?
S.14(e) . Protection of tenant against eviction. - Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 12 recovery of possession of any premises shall be made by and court or Controller in favor of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:
(e) That the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation;
Explanation. For the purpose of this clause, "premises let for residential purpose" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;
A perusal of clause (e) of subsection (1) of Section 14 of the Act shows that it empowers the Controller to order recovery of possession of premises from the tenant by a landlord, if the premises let out for residential Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 13 purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependant on him. If he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation. Admittedly the respondent's application seeking eviction of the appellant was filed under clause (e) of subsection (1) of Section 14 of the Act.
In Nem Chand Daga Vs. Inder Mohan Singh Rana 94 (2001) DLT 683, a Bench of this Court had noted as under: "That before leave to defend is granted, the respondent must show that some triable issues which disentitle the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows."
In (1982) 3 SCC 270 Precision Steel & Engineering Works & another Vs. Prem Devi Niranjan Deva Tayal the Apex Court has held as follows:
"Prayer for leave to contest should be granted to Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 14 the tenant only where a primafacie case has been disclosed by him. In the absence of the tenant having disclosed a primafacie case i.e. such facts as to what disentitles the landlord from obtaining an order of eviction, the Court should not mechanically and in routine manner grant leave to defend."
The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfillment. 'Need' or 'requirement' qualified by word 'bona fide' or 'genuine' preceding as an adjective is an expression often used in Rent Control Laws. 'Bona fide or genuine need' of the landlord or that the landlord 'genuinely requires' or 'requires bona fide' an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning. Considering Dictionary meanings the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bona fide' is suggestive Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 15 of legislative intent that a mere desire which is 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 contra distinction 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 the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court.
A test has been laid down in AIR 1999 SC 2507 "Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta":
"The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 16 the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord."... "In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."
In the present case the averments of the petitioner are that she needs the premises in order to run a business of Cyber Café. The chief contention on part of the respondenttenant is that none of the children of the petitioner is dependant on the petitioner. The petitioner is said to have retired from the service. The son of the petitioner is a governmentservant who is earning well and who is staying in a government accommodation. The daughter I divorcee and happens to be graduate in the Secretarial Course. All the three re staying together in the government accommodation. The case of the petitioner I that she alongwith her daughter wants to start a new Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 17 business of Cyber Café in the premises.
As a broad workable rule the landlord must be left to assess his requirements in the back ground of his position, circumstances, status in life and special and other responsibilities and other relevant factors. While considering the question of ejectment on the ground of bonafide requirement of the landlord, it is eminently desirable to strike a proper and just balance between the rights of the owner on the one hand and those of the tenant as protected by the law on the other. The owner is entitled to make himself comfortable and is normally speaking, the best judge of his own requirement. Unless he can be considered to be abusing or misusing this right to acquire possession of his property in eviction proceedings, which means that he is seeking to get possession under the veil of bonafide requirement, but for some other purpose, his claim demands acceptance of course, in some rare case when his claim prima facie appears to be wholly unreasonable, when considered in the background of his status, position and other family circumstances the controller or the tribunal may be persuaded judicially to negative his bonafides. This is the Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 18 law which is being followed since long.
The consideration that is now left is whether the petitioner's requirement is genuine visàvis starting new business of cyber café in the premises. The courts have decided the evictions in favour of the landlords who want to start new businesses irrespective of the age etc. The petitioner is said to have retired from computer related job in the Dept. of Statistics.
In 2009(2) RCR 455 titled as Ram Babu Agarwal vs. Jay kishan Das, the Apex Court held 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 businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also.
In Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal and Others, (2005) 8 Supreme Court Cases 252; the Court held ;
"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 19 for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."
In Sudesh Kumar Soni & anr. Vs. Prabha Khanna & Anr.,153 (2008) Delhi Law Times 652, the Court observed;
"It is not for tenant to dictate terms to landlord as to how else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background."
It has been held in "Sarla Ahuja v. United India Insurance Co. Ltd." AIR 1999 SC 100 :
"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 Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 20 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 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.
16. In view of the aforesaid observation and discussion, it is clear that the respondent has failed to raise any issue which, if proved, would disentitle the landlady/petitioner from obtaining an order for recovery of possession of the tenanted premises, and therefore the application of the respondent for leave to defend is dismissed and eviction order is passed in favour of the petitioner and against the respondent in respect of the premises bearing number Shop No:148, Bhagat Singh Market, New Delhi110001, as shown in site plan now exhibited as Ex.C1. However, in view of Section 14(7) of the DRC Act, this order shall Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja 21 not be executed before the expiry of a period of six month from today. File be consigned to record room.
Announced in the open court on this 17th day of September, 2012.
(VEENA RANI) Additional Rent Controller,New Delhi Smt. Raj Kumari v.
Smt. Satinder Pal Singh Ahuja