Delhi District Court
Shri Rajesh Kumar Gupta vs Shri Satya Narain Bansal on 23 July, 2016
IN THE COURT OF ACJCCJARC, SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI.
Presided By : Sh. Jay Thareja, DJS
E No: 106/2013
RC No. 191/2016
1. Shri Rajesh Kumar Gupta
S/o Sh. Beni Prashad Gupta,
R/o C230, Vivek Vihar, PhaseI
Delhi110095.
2. Smt. Achla Gupta
W/o Late Sh. Rakesh Kumar Gupta
R/o B367, Prashant Vihar,
Delhi110058.
... Petitioners
Versus
Shri Satya Narain Bansal
S/o late Shri Ganga Dutt Bansal
R/o C183m F.F., Surya Nagar,
Ghaziabad,
UP201011
Also at:
Shop Bearing No. B16/2
LSCII,
B Block Market, Vivek ViharI
Delhi 110095.
... Respondent
APPLICATION/PETITION U/S 14(1)(e) OF DELHI RENT
CONTROL ACT, 1958, FOR EVICTION OF TENANT
E No.106/2013
Rajesh Kumar Gupta & Ors. v Satya Narain Bansal
Page no. 1 of 13
DATE OF INSTITUTION : 02.09.2013
DATE OF ARGUMENTS : 24.05.2016
DATE OF DECISION : 23.07.2016
ORDER
1. This Order disposes of an application filed by Sh. Satya Narain Bansal (henceforth 'respondent') under Section 25B(4) of the DRC Act, 1958 on 15.10.2013 seeking leave to contest the application/petition (henceforth 'petition') filed under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (henceforth 'DRC Act') by Sh. Rajesh Kumar Gupta and Smt. Achla Gupta (henceforth petitioners or 'petitioner no. 1' and 'petitioner no. 2', respectively). By way of the said petition, the petitioners have sought eviction of the respondent from shop bearing no. B16/2, Shopping Centre no. 2, Jhilmila Tahirpur PhaseI, now known as Vivek Vihar PhaseI, Illaqa Shahdara, Delhi95 (henceforth 'tenanted premises').
2. In the petition, it is interalia pleaded by the petitioners that the respondent is the tenant and the petitioners are the landlord/landlady as well as owners qua the tenanted premises; that the petitioner no. 2 is a widow and sister in law of the petitioner no. 1; that on 25.04.1993, the tenanted premises was let out by Late Sh. Suresh Kumar Gupta, brother of the petitioner no. 1 and brother in law of the petitioner no. 2 to the respondent on a monthly rent of Rs.150/ excluding water and electricity charges; that Late Sh. Suresh Kumar Gupta had sold the tenanted premises to petitioners vide agreement to sell, receipt and GPA dated 03.03.2000; that the said sale was intimated to the respondent and the petitioners were attorned as landlord qua the tenanted premises; that thereafter, the respondent had paid rent at the rate of Rs.150/ per month to the petitioners but after E No.106/2013 Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 2 of 13 few months, the respondent had stopped paying rent; that the petitioners require the tenanted premises for bonafide need of the petitioner no. 2 who is a widow finding it hard to earn her livelihood and wishes to run a beauty parlour in the tenanted premises; that the petitioner no. 2 has two sons, one of whom, is still a student; that petitioner no. 2 has experience of working as a beautician and she is presently doing the said work by visiting the houses of her clients; that the petitioner no. 2 now wishes to do the beautician work in a respectable manner from the tenanted premises; that the petitioners had served legal notice dated 25.02.2013 upon the respondent and terminated his tenancy with effect from 31.03.2013; that instead of vacating the tenanted premises, the respondent had sent a reply to the said legal notice; that the petitioners had served a rejoinder dated 16.05.2014 to the said reply, upon the respondent and that despite the bonafide need of the petitioners, the respondent has not vacated the tenanted premises for use by the petitioner no. 2.
3. In the application filed under Section 25B(4) of the DRC Act, 1958 on 15.10.2013, the respondent has sought leave to contest the present petition on various grounds. The first ground taken by the respondent is that although Late Sh. Suresh Kumar Gupta was the landlord and owner qua the tenanted premises, the petitioners are neither the landlords nor the owners qua the tenanted premises. In order to substantiate the ground, the respondent has made alternative pleadings. At the first instance, the respondent has pleaded that before the alleged transfer of rights qua the tenanted premises to the petitioners by Late Sh. Suresh Kumar Gupta on 03.03.2000, he had obtained part performance rights1 in the tenanted premises on 18.07.1997 by paying 1 The term 'part performance rights' has been used in this Order in reference to the protection granted under Section 53A of the Transfer of Property Act, 1882 to a prospective purchaser against the owner of an immovable E No.106/2013 Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 3 of 13 Rs.5100/ to Late Sh. Suresh Kumar Gupta in pursuance of deal/written agreement to sell dated 18.07.1997 qua the sale of the tenanted premises for a total consideration of Rs.1,70,000/. At the second instance, the respondent has pleaded that he has perfected his title qua the tenanted premises by way of adverse possession since 18.07.1997. At the third instance, the respondent has pleaded that no rights could have been transferred to the petitioners by Late Sh. Suresh Kumar Gupta by virtue of agreement to sell, receipt, Will and GPA dated 03.03.2000 because Late Sh. Suresh Kumar Gupta only had lease hold rights qua the tenanted premises by virtue of perpetual lease dated 18.05.1971 executed in favour of Late Sh. Suresh Kumar Gupta by the President of India. The second ground taken by the respondent is that the petitioners have other properties which can be used by the petitioner no. 2 for running a beauty parlour. In order to substantiate the ground, the respondent has claimed that both the petitioners have rights in shop no. B 16/1, Shopping Centre No. 2, Jhilmila Tahirpur, PhaseI, where from, the petitioners are running the business of real estate under the trade name of Ms. Amba Aggarwal Estate; that both the petitioners have rights in shop no(s). B16/3 and B16/4, Shopping Centre No. 2, Jhilmila Tahirpur, PhaseI, where from, the petitioners and Bansal Mithai Wala are running the business of sweet shop and catering; that the petitioners own property no. A1, Main Road, Yojana Vihar, Delhi92, where from, the petitioners are running their business of collaborations in real estates; that the petitioners own property no. G3, ground floor, main road, before petrol pump, opposite hitech city and village Mehrauli, NH 24, Hapur Bypass, Ghaziabad, UP, where from, the petitioners are running their real estate business and working as authorized sale brokers of big constructions companies and that the petitioners no. 2 owns property no. B367, Prashant Vihar, Delhi58, where from, she is property.
E No.106/2013Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 4 of 13 running a beauty parlour in the name of M/s. Achla Beauty Parlour. The third ground taken by the respondent is that the site plan filed by the petitioners is wrong in as much as it does not disclose the correct numbers of the shops adjoining the tenanted premises and shows shop no(s). B16/3 and B16/4, Shopping Centre No. 2, Jhilmila Tahirpur, PhaseI as independent shops whereas, in reality there is no wall between the said shops. The fourth ground taken by the respondent is that the affidavit filed by the petitioners alongwith the petition is defective in as much as it declares that the present petition has been filed under Section 14(1)(a) and Section 14(1)(e) of the DRC Act, 1958.
4. In the reply to the aforesaid application, the petitioners have joined issues on all the grounds taken by the respondent. In respect of the first ground taken by the respondent, the petitioners have denied that any agreement to sell was executed between Late Sh. Suresh Kumar Gupta and the respondent on 18.07.1997 and further, in the alternative, the petitioners have pleaded that even if such an agreement was executed, it could not have conferred any rights upon the respondent because the agreement to sell dated 18.07.1997 filed by the respondent does not bear the signatures of the respondent, because it is on a plain paper, because it is not attested by any witness, because the respondent has neither pleaded nor placed on record any proof of making arrangement of Rs.1,65,000/ within one month from 18.07.1997, for performance of his part of the said agreement and because till the issuance of the legal notice dated 25.02.2013, the respondent had not taken any steps in pursuance of the agreement to sell dated 18.07.1997. In respect of the second ground taken by the respondent, the petitioners have pleaded that shop no. B16/1, Shopping Centre No. 2, Jhilmila Tahirpur, PhaseI, is owned by the petitioner no. 1 and since he was finding it difficult to run his business of real estate E No.106/2013 Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 5 of 13 from the said shop, he has taken on rent, an office at A1, Main Road, Yojana Vihar, Delhi 92; that shop no(s). 16/3 and B16/4, Shopping Centre No. 2, Jhilmila Tahirpur, PhaseI are in illegal possession of Bansal Mithai Wala, against whom Smt. Manju, owner of shop no. B16/3 and the petitioner no. 2, owner of shop no. B16/4 have already filed suits for possession etc. in the Hon'ble High Court of Delhi; that the property no. G3, ground floor, main road, before petrol pump, opposite hitech city and village Mehrauli, NH 24, Hapur Bypass, Ghaziabad, UP was taken on rent by the petitioner no. 1 from 01.05.2006 till 30.09.2008 and its possession was duly returned to its owners upon termination of tenancy and that property no. B367, Prashant Vihar, Delhi is the residence of the petitioners, where from, it is not possible to run the business of beauty parlour. In respect of the third ground taken by the respondent, the petitioners have denied that the site plan filed alongwith the petition is incorrect. In respect of the fourth ground taken by the respondent, the petitioners have affirmed that they have filed the present petition exclusively under Section 14(1)(e) of the DRC Act, 1958.
5. In the rejoinder to the aforesaid reply, the respondent has denied the contents of the aforesaid reply and reaffirmed the contents of his application. However, in the last para of page 2, the respondent has admitted that the property no. B367, Prashant Vihar, Delhi is a residential property built on 84 sq. yds. of land.
6. I had heard Ms. Ritu Gupta, Ld. Advocate for petitioners and Sh. Rajiv Aggarwal, Ld. Advocate for the respondent on 24.05.2016. During arguments, Sh. Rajiv Aggarwal, Ld. Advocate for the respondent had reiterated the contents of the leave to defend application filed by the respondent. Also, the Ld. Advocate for the respondent had E No.106/2013 Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 6 of 13 submitted that the need of the petitioners prima facie does not appear to be bonafide because in the legal notice 25.02.2013 served upon the respondent, there was no mention of alleged need of the petitioner no. 2 and the said need was specified for the first time in the rejoinder dated 16.05.2013. In support of his submissions, the Ld. Advocate for the respondent had relied upon the law laid down in Delhi Development Authority v Vijaya C. Gurshaney (Mrs) and Another, (2003) 7 SCC 301, Kalyan Singh v J.P. Gupta, 1977 Rajdhani Law Reporter 242, R. Kanthimathi and other v Mrs. Beatrice Xavier, AIR 2003 SC 4149, Kanchan Kapoor & Ors. v Sarwan Kumar, 216 (2015) Delhi Law Times 136, Devi Das v Mohal Lal, 1982 AIR (SC) 1213, Charan Dass Duggal v Brahma Nand, (1983) 1 SCC 301, Manoj Kumar v Bihari Lal (Dead) By Lrs., (2001) 4 SCC 655, Kailash Chand v Sakhir Chand, 1984 Rajdhani Law Reporter (Note) 58, Vinod Ahuja v Anil Bajaj & Anr., 194 (2012) Delhi Law Times 203, Ram Narain Arora v Asha Rani and others, AIR 1998 SC 3012, Khem Chand & Ors. v Arjun Jain & Ors., 202 (2013) Delhi Law Times 613, S.K. Seth & Sons v Vijay Bhalla, 2012(3) CLJ 716 Del., Liaq Ahmed and others v HabeedUr Rehman, AIR 2000 SC 2470, Satto Devi v Om Prakash Saini, 1997 IV AD (Delhi) 534 and Inderjeet Kaur v Nirpal Singh, (2001) 1 SCC 706. Per contra, the Ld. Advocate for the petitioners had reiterated the contents of the petition and the reply filed by the petitioners. Also, the Ld. Advocate for the petitioners had submitted that the dispute raised by the respondent regarding the site plan is inconsequential because the purpose of the site plan is only to identify the tenanted premises. In support of her submissions, the Ld. Advocate for the petitioners had relied upon the law laid down in Sudhir Sabharwal v Rajesh Pruthi, 2014(3) CLJ 675 Del., Radha Devi v Deep Narayan Mandal and others, (2003) 11 SCC 759, Prem Chand Sharma (Now Deceased) & Anr. v Ram Gopal, 2016(2) CLJ 259 Del., Maya Devi v Lalta Prasad, CA No. 2458/2014 decided by the Hon'ble Supreme Court on E No.106/2013 Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 7 of 13 19.02.2014.
7. After the considering the submissions made by the Ld. Advocates and perusing the record of the Court file, I find that the first ground taken by the respondent does not raise any triable issue, for multiple reasons. Firstly, in my view, the assertion of the respondent that he had obtained part performance rights in the tenanted premises on 18.07.1997 by paying Rs.5100/ to Late Sh. Suresh Kumar Gupta in pursuance of deal/written agreement to sell dated 18.07.1997 qua the sale of the tenanted premises for the total consideration of Rs.1,70,000/, is untenable in law, because the said written agreement to sell dated 18.07.1997 does not specify with reasonable certainty, the terms necessary for transfer of the tenanted premises to the respondent by Late Sh. Suresh Kumar Gupta1 and because the conduct of the respondent of not acting upon the said written agreement to sell till the receipt of the legal notice dated 25.02.2013 indisputably reflects that the respondent had no willingness to perform his part of the alleged written agreement to sell dated 18.07.1997 within the agreed period of one month. Secondly, in my view, the assertion of the respondent that he has perfected his title qua the tenanted premises by way of adverse possession since 18.07.1997 is untenable in law, because in the leave to defend application, the respondent has himself pleaded that up till the death of Late Sh. Suresh Kumar Gupta on 28.12.2012, he did not have any hostile relation with 1 In Shrimant Shamrao Suryavanshi v Pralhad Bhairoba Suryavanshi, (2002) 3 SCC 376, the Hon'ble Supreme Court has held that in order seek protection under Section 53A of the Transfer of Property Act, 1882, a prospective purchaser has to interalia show that the written contract must be in such words from which the terms necessary to construe the transfer can be ascertained and that the prospective purchaser was willing to perform his part of the written contract. In the instant case, it is the case of the respondent/prospective purchaser that it was agreed between him and Late Sh. Suresh Kumar Gupta that after obtaining NOC from DDA, Late Sh. Suresh Kumar Gupta will execute sale deed in his favor. Since this stipulation is not mentioned in the written agreement to sell dated 18.07.1997, it is clear that it cannot be held that said agreement discloses with certainty the terms necessary to transfer the tenanted premises to the respondent.
E No.106/2013Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 8 of 13 Late Sh. Suresh Kumar Gupta or the petitioners. From the said pleading, it is evident that the possession of the respondent qua the tenanted premises was not hostile 1 from the vantage point of Late Sh. Suresh Kumar Gupta and the petitioners till 28.12.2012. The fact that the respondent has filed a suit for specific performance on the strength of the written agreement to sell dated 18.07.1997 against the LRs of Late Sh. Suresh Kumar Gupta also defeats the assertion of the respondent that he has perfected his title qua the tenanted premises by way of adverse possession. Thirdly, in my view, the assertion of the respondent that Sh. Suresh Kumar Gupta could not have transferred any rights to the petitioners due to the terms and conditions of the perpetual lease dated 18.05.1971, is factually untenable because clause 7 of perpetual lease dated 18.05.1971 contemplates that Late Sh. Suresh Kumar Gupta could have transferred his title to any person subject to the terms and conditions of the perpetual lease dated 18.05.1971. In Rajender Kumar Sharma and others v Smt. Leelawati and others, 155 (2008) DLT 383, the Hon'ble High Court of Delhi held that in a petition under Section 14(1)(e) of the DRC Act, 1958, a landlord is not required to prove absolute ownership qua the tenanted premises and he/she is only required to show that he/she has more rights in contrast to the tenant. In my view, in the present case, the respondent is only a tenant qua the tenanted premises and the petitioners, being the successors in interest of Late Sh. Suresh Kumar Gupta by virtue of agreement to sell, receipt and GPA dated 03.03.2012, have superior rights qua the tenanted premises, in contrast to the respondent. In taking this view regarding the rights of the petitioners, I draw strength from the law laid down in Maya Devi v Lalta Prasad, CA No. 2458/2014 decided by the Hon'ble Supreme Court on 19.02.2014 and Ramesh Chand v Suresh Chand, 188 (2012) DLT 538. In Maya Devi v Lalta Prasad, CA No. 2458/2014 1 In P.T. Munnichikkana Reddy v Revamaa, (2007) 6 SCC 59, it has been observed that a plea of adverse possession should be based on open, continuous and hostile possession of the concerned property.
E No.106/2013Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 9 of 13 decided by the Hon'ble Supreme Court on 19.02.2014, it has been held that the judgment of Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v State of Haryana and Anr., (2009) 7 SCC 363 is prospective and does not apply to genuine transactions done before the passing of the said judgment. In Ramesh Chand v Suresh Chand, 188 (2012) DLT 538, the Hon'ble High Court of Delhi has held that in view of Section 202 of the Contract Act, 1872, the death of the principal, in case of power of attorney issued for consideration, does not terminate the authority of the agent. From the law laid down in the said judgments, it becomes clear that by virtue of agreement to sell, receipt and GPA date 03.03.2000 executed for consideration by Late Sh. Suresh Kumar Gupta, the petitioners have obtained rights in the tenanted premises.
8. In respect of the second ground taken by the respondent, I find that it does not raise any triable issue because the petitioners have given sufficient explanation regarding the properties alleged to be in their possession by the respondent. In respect of shop no. B16/1, Shopping Centre No. 2, Jhilmila Tahirpur, PhaseI, the petitioners have explained that it is owned by the petitioner no. 1 and is being used by the petitioner no. 1 for running his business of real estate. From the photographs filed by the respondent on 15.10.2013, it is clear that the said shop is being used for real estate business in the name of Amba Aggrawal Associates, Amba Aggrawal Properties and Amba Property Dealers. In Sarla Ahuja v United India Insurance Company Limited, AIR 1999 SC 100, the Hon'ble Supreme Court has held that it is not open the tenant to dictate terms to the landlord as to how else he/she can adjust himself without giving possession of the tenanted premises. Applying the ratio of the said judgment to the facts of the present case, the respondent cannot be permitted to dictate terms to the petitioners to the effect that they should use E No.106/2013 Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 10 of 13 shop no. B16/1, Shopping Centre No. 2, Jhilmila Tahirpur, PhaseI , for the beauty parlour of the petitioner no. 2 instead of the real estate business of the petitioner no.1. In respect of shop No (s). B16/3 and B16/4, Shopping Centre No. 2, Jhilmila Tahirpur, PhaseI, the petitioners have explained that they are in illegal possession of Bansal Mithai Wala and Smt. Manju and the petitioner no. 2, owners of the said shop have filed suits for possession etc. in the Hon'ble High Court of Delhi to recover their possession. The said assertions of the petitioners have been substantiated by the Order dated 07.07.2015 passed by Hon'ble High Court of Delhi in CS(OS) No. 1567/2013 and 1568/2014. Thus, the petitioners cannot be said to be in possession of the shop No (s). B16/3 and B16/4, Shopping Centre No. 2, Jhilmila Tahirpur, PhaseI. In respect of A1, Main Road, Yojana Vihar, Delhi92, the petitioners have explained that it has been taken on rent by the petitioner no. 1 for running his business of real estate. The respondent has not filed any document to show that the said property is owned by the petitioners. 1 Applying the ratio of Sarla Ahuja v United India Insurance Company Limited, AIR 1999 SC 100, the respondent cannot be permitted to dictate terms to the petitioners to the effect that they should use shop no. A1, Main Road, Yojana Vihar, Delhi92, for the beauty parlour of the petitioner no. 2 instead of real estate business of the petitioner no. 1. In respect of property no. G3, ground floor, main road, before petrol pump, opposite hitech city and village Mehrauli, NH 24, Hapur Bypass, Ghaziabad, UP, it is an admitted case of the respondent that it is located far away from the current place of business of beauty parlour of the petitioner no.2. Clearly, the respondent cannot be permitted to dictate that instead of running her beauty parlour from the tenanted premises which is nearby to her current place of business, the petitioner no. 2 should run her beauty parlour from property no. G3, ground floor, main 1 Reference is craved to the law laid down in Gulati Trading Company v Manmohan Verma & Anr., 2014 (3) CLJ 689 Delhi.
E No.106/2013Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 11 of 13 road, before petrol pump, opposite hitech city and village Mehrauli, NH 24, Hapur Bypass, Ghaziabad, UP, which is far away from her current place of business. In respect of property no. B367, Prashant Vihar, Delhi, it is again an admitted case of the respondent that it is the residential property of petitioner no. 2, where from the petitioner no. 2 is running a beauty parlour. Clearly, the respondent cannot be permitted to dictate that the petitioner no. 2 should continue to run her beauty parlour from the said property instead of shifting it to the tenanted premises, which is in a market/commercial area.
9. In respect of third ground taken by the respondent, I find that it does not raise any triable issue because the purpose of the site plan is only to identify the tenanted premises and in the present case, there is no dispute between the parties regarding the identity of the tenanted premises.
10. In respect of the fourth ground taken by the respondent, I find that it does not raise any triable issue because the petitioners have affirmed that they have filed the present petition exclusively under Section 14(1)(e) of the DRC Act, 1958.
11. Lastly, in respect of the objection taken by the Ld. Advocate for the respondent during arguments that petitioners had not mentioned the bonafide need of the petitioner no. 2 in the legal notice dated 25.07.2013 and specified such need for the first time in the rejoinder dated 25.02.2013, I find that it does not raise any triable issue because it is inconsequential whether the bonafide need of the petitioner no. 2 had arisen before sending the legal notice dated 25.02.2013 or thereafter.
E No.106/2013Rajesh Kumar Gupta & Ors. v Satya Narain Bansal Page no. 12 of 13
12. As a net result of the aforesaid, the leave to defend application filed by the respondent on 15.02.2013 is rejected. It is ordered that the respondent be evicted from tenanted premises i.e. shop bearing no. B16/2, Shopping Centre no. 2, Jhilmila Tahirpur PhaseI, now known as Vivek Vihar PhaseI, Illaqa Shahdara, Delhi95 as shown in red colour of the site plan filed alongwith the petition.
13. Before parting with this Order, it is clarified that as per Section 14(7) of the DRC Act, 1958, this Order shall not be enforceable for the period of six months from today.
14. After completion of necessary formalities by the Ahlmad, the file shall be consigned to the record room.
Announced in open Court (Jay Thareja)
today on 23.07.2016 ACJ/CCJ/ARC/Shahdara
Karkardooma Courts/Delhi
E No.106/2013
Rajesh Kumar Gupta & Ors. v Satya Narain Bansal
Page no. 13 of 13