Delhi District Court
M/S S. Chand & Co vs Sh. Jay Kant Mishra on 19 November, 2011
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS
HAZARI COURTS, DELHI.
E12/09 & E68/09
19.11.2011
1. M/s S. Chand & Co.,
Having its office at 7361,
Ram Nagar, New Delhi.
Through its Managing Director
Shri Ravindra Kumar Gupta.
2. Shyam Lal Nursing Home & Medical,
Research Centre (Pvt.) Ltd.,
19, Ansari Road, Darya Ganj,
New Delhi110002.
Through its Managing Director
Shri Ravindra Kumar Gupta ...Petitioners
VERSUS
Sh. Jay Kant Mishra,
S/o Sh. Chandra Kumar Mishra,
19, First Floor, Radha Madhav Mandir,
Ansari Road, Darya Ganj,
New Delhi. ...Respondent
Petition u/s 22 of Delhi Rent Control Act
Petition u/s 14 (1)
(i)
of Delhi Rent Control Act
1. Date of institution of the case : 29.10.2004
2. Date of Judgment Reserved : 05.11.2011
3. Date of Judgment pronounced : 19.11.2011
E12/09 & E68/09 Page 1 of 32
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JUDGMENT
Vide this common judgment I propose to decide the aforesaid two eviction petitions u/s 22 and u/s 14 (1) (i) of Delhi Rent Control Act which have been filed by the petitioners company through its Managing Director Sh. Ravindra Kumar Gupta against Sh. Jay Kant Mishra, the respondent as the facts of both the petitions and the evidence led by the parties are same.
2. The case of the petitioners as pleaded in the petitions are that the petitioner no. 2 is the owner of the property bearing no. 19, Ansari Road, Darya Ganj, New Delhi. The petitioner no. 2 is the sister concern of petitioner no. 1 and the respondent was an employee of petitioner no. 1. It is stated that the respondent firstly joined in the employment of the petitioner no. 1 in the year 1992 and had tendered his resignation on 14.11.1997 which was duly accepted by the petitioner no. 1 and the petitioner no. 1 accordingly settled his accounts in full and final. However, the respondent again approached the petitioner no. 1 for employment and considering his requests, the petitioner no. 1 had appointed the respondent w.e.f 01.05.1998 on fresh terms and conditions as sales executive. It is further stated that the respondent approached the petitioner no. 1 for allotment of one room accommodation at E12/09 & E68/09 Page 2 of 32 //3// first floor forming part of property bearing no. 19, Ansari Road, Darya Ganj, New Delhi for the residence of himself and his family members and considering the requests of the respondent the petitioner no. 1 had allotted one room accommodation to the respondent as shown red in the site plan. The respondent had also illegally encroached upon side room with three partition portion adjacent to room which was allotted to him during the course of his employment. The encroached area shown in green color in the site plan. It is further stated that since 25.03.2003, the respondent was absent from the service without any permission and intimation to petitioner no. 1. The petitioner sent several letters to the respondent interalia dated 16.04.2003, 23.04.2003, 07.05.2003, 12.05.2003 but inspite of service of said letters, the respondent did not join the service of the petitioner no. 1. Thereafter the respondent had filed a frivolous complaint with the Conciliation Officer, Pusa Road, New Delhi which was duly contested by the petitioner no. 1. However, during the pendency of the conciliation proceedings, the respondent again tendered his resignation letter dated 25.06.2003 which was duly accepted by the petitioner no. 1 and the petitioner no. 1 had accordingly made the payment to the respondent in full and final settlement. It is further stated that the accommodation available with the respondent was allotted to him during E12/09 & E68/09 Page 3 of 32 //4// the course of his employment and during the employment, the respondent had also encroached/trespassed upon the adjacent side room. The petitioner no. 1 requires the premises under the possession of the respondent for the use of other employees as there is no sort of any relationship between the respondent and petitioner no. 1 as employee and employer. It is further stated that the petitioner no. 1 has issued a notice dated 16.10.2003 through his counsel to the respondent but inspite of service of the notice, the respondent has neither vacated the suit premises nor paid the damages. However, the respondent sent a false reply dated 08.11.2003 through his counsel. It is further stated that the petitioner need the suit premises for the use of their other employees and as the respondent has ceased to be employee of the petitioner no. 1 an eviction order be passed against the respondent.
3. Written statements filed on behalf of the respondent wherein he stated that neither the petitioner no. 1 nor petitioner no. 2 are the owners or landlord of the suit premises. It is stated that the site plan filed by the petitioners is wrong as the same indicates even the public gali as part of the properties shown in the alleged sale deed. It is further stated that the petitioner had earlier approached the respondent to sell the disputed premises but the E12/09 & E68/09 Page 4 of 32 //5// respondent had refused and as the disputed premises is separated by a gali six feet wide, the petitioner no. 1 had a coveted eyes to encroach the gali after purchasing the disputed premises. It is further stated that the petitions are bad for misjoinder of parties i.e the petitioner no. 2. It is further stated that an another suit pending in the court of Sh. Manoj Kumar, Civil Judge, Delhi and the respondent herein has raised the dispute regarding the title of the premises. It is denied that petitioner no. 1 and 2 are the sister concern. It is denied that the respondent was appointed afresh on 01.05.98. It is stated that the respondent was in the continuous employment of petitioner no. 1 from 03.09.92 till 25.06.2003, when he tendered his resignation. It is further stated that the respondent is residing in the property bearing address first floor Radha Madhav Mandir, 4634/119A Ansari Road, Delhi in his own independent capacity. It is further stated that the address of the premises in occupation of the respondent is not correct as stated in the petition and the correct address of the suit premises is First floor Radha Madhav Mandir, 4634/119A, Ansari Road, Delhi. It is further stated that the father of the respondent Late Sh. Pandit Chandra Kumar Mishra was a pujari/priest at the Radha Madhav Mandir since around 1965 and it is since then that he was in possession of the property which is at present in the occupation of the E12/09 & E68/09 Page 5 of 32 //6// respondent. The father of the respondent had played a prominent role in the construction of the said mandir. He alongwith other members of the community had constructed the said mandir after collecting donations from members of the community. Initially the mandir was a small construction but it was renovated from time to time by utilising donations from the public. It is further stated that the ground floor and the basement of the property above which the property in question is located is neither in the possession of the petitioners nor do they have any title over it. It is further stated that on 03.09.92, respondent started work with the petitioner no. 1. The father of the respondent was suffering from cancer and therefore, in the year 1995 the respondent started residing with his father into the premises in question. After sometime the father of the respondent went back to his home village but the respondent continued to stay there alongwith his family. The respondent wanted to change his address but the petitioner no. 1 refused to change the address for correspondence of the respondent to the premises in question. The respondent was clearly told by the management that if he insisted on the change of address he would had to resign from his job. The respondent therefore had to maintain a different address for the purpose of correspondence with petitioner no. 1 and on 25.06.2003 the respondent E12/09 & E68/09 Page 6 of 32 //7// resigned from his job with petitioner no. 1. It is further stated that respondent has not encroached upon any premises/room whatsoever. All other averments made in the petition were denied.
4. Replication filed on behalf of the petitioners wherein they denied that respondent is owner or landlord. It is further stated that the premises in question is a part of the property no. 19, Ansari Road, Darya Ganj, New Delhi. It is further stated that before respondent, one person namely Mr. Mangal Sen, who was working as XRay Technician with the petitioner no. 2, was allotted one room adjacent to room which was allotted to the respondent and after the vacation of the room by Mr. Mangal Sen the respondent encroached upon the adjacent room. It is further stated that the respondent approached the petitioner no. 1 for allotment of small accommodation at first floor forming part of property bearing no. 19, Ansari Road, Darya Ganj, New Delhi for the residence of himself and his family members as he has to vacate his tenanted accommodation at 1924, Gali Lehswa, Bazar Sita Ram, Delhi6. Even otherwise, the appointment letter dated 18.03.1998 was also received by the respondent at the said address and therefore, after repeated requests made by the respondent for the allotment of the accommodation on temporary E12/09 & E68/09 Page 7 of 32 //8// basis, the petitioner no. 1 with the consent of the petitioner no. 2 agreed to allot one room accommodation at first floor forming part of property no. 19, Radha Madhav Mandir, Ansari Road, Darya Ganj, New Delhi for the residence of the respondent and his family members. It is further stated that the pendency of case before Sh. Manoj Kumar, Civil Judge, Delhi is for declaration, injunction and recovery of damages. All other averments made in the written statement were denied and those made in the petition were reiterated and reaffirmed.
5. To prove his case the petitioners have examined Sh. Manoj Kumar Srivastava, Dy. Manager of petitioner no. 1 company as PW1 and his affidavit Ex. P1. One Sh. H.K.Goswami was examined as PW2. The copies of resolutions dated 21.10.2004 and 23.10.2004 in favour of Sh. Ravinder Kumar Guptra, Manging Director of the petitioners company and in favour of Manoj Kumar Srivastava are Ex. PW1/1 and Ex. PW1/2, copy of the sale deeds Ex. PW1/3 to Ex. PW1/6, agreement of training dated 03.09.92 is Ex.PW1/7, appointment letter dated 03.09.93 is Ex. PW1/8, letter dated 01.09.93 wrote by respondent for change of his address Ex. PW1/9, ESI card of the respondent Ex. PW1/10, resignation letter of respondent dated E12/09 & E68/09 Page 8 of 32 //9// 14.1197 Ex. PW1/11, application alongwith biodate of the respondent dated 12.07.92 Ex. PW1/12, appointment letter dated 01.05.1998 Ex. PW1/13, site plan Ex. PW1/14, copies of the letters dated 16.04.2003, 23.04.2003, 07.05.2003 and 12.05.2003 Ex. PW1/15 to PW1/18 respectively, resignation letter of respondent dated 25.06.2003 Ex. PW1/19, receipt dated 17.07.2004 and voucher dated 28.07.2004 are Ex. PW1/20 and Ex. PW1/21 respectively, copy of the notice dated 16.10.2003 Ex. PW1/22 and reply Ex. PW1/23, resolution dated 11.01.2011 in favour of PW2 Ex. PW2/1 and the site plan which was filed after seeking permission of this court Ex. PW2/2. Copy of order of Labour Commissioner dated 21.06.2004 is also Ex. PW1/20.
6. On the other hand respondent has examined himself as RW1 and his evidence by way of affidavits are Ex. RW1/A and RW1/A1. The documents exhibited are the certified copy of sale deed dated 30.06.1991 Ex. RW1/1, original copy of letter dated 16.05.05 Ex. RW1/2, certified copy of sale deed dated 09.09.94 Ex. RW1/3, certified copy of another sale deed dated 09.09.94 Ex. RW1/4, certified copy of two notices dated 29.10.07 Ex. RW 1/7 (colly), information taken under RTI from Police alongwith original receipt E12/09 & E68/09 Page 9 of 32 //10// is Ex. RW1/8 (colly), certified copy of order passed by Sh. Manoj Kumar, then Civil Judge dated 08.11.05 Ex. RW1/9 and certified copy of cross examination dated 24.04.08 is Ex. RW1/10, site plan filed by the respondent Ex. RW1/11. There is no Ex. RW1/5 and RW1/6. The documents put in the cross examination is an application Ex. RW1/P1, biodata dated Ex. RW 1/X1, letter dated 15.06.92 alongwith biodata of the respondent Ex. RW1/X2 and X3, copy of the ration card, voter Icard and passport of the respondent Ex. RW1/X4, Ex. RW1/X5 and Ex. RW1/X6 respectively, a photocopy of reply on behalf of Shyam Lal Nursing Home to Police Station, Darya Ganj dated 25.01.2002 is marked A, a photocopy of letter written by SI C.P.Bhan, PS Darya Ganj, 24.01.2002 is marked A1, photocopy of letter dated 16.01.2002 to DCP, Central is marked B, photocopy of company master detail of Shyam Lal Nursing Home is marked C, photocopy of affidavit of Smt. Nirmala Gupta dated 07.01.98 is marked D.
7. Arguments heard. Ld. counsel for the parties also filed written arguments. Record perused and considered.
E12/09 & E68/09 Page 10 of 32
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8. Ld. counsel for the petitioners relied upon the following rulings :
(i) Krishan Kumar Jaggia Vs. Jag Mohan Bhardwaj, 28 (1985) DLT 193.
(ii) Kamla Rani & Ors. Vs. Texmaco Ltd., 139 (2007) DLT 61.
(iii) T.R.Balasubramanian Vs. Shriram Scientific & Industrial Research, 129 (2006) DLT 763.
(iv) Shiv Pal Singh Vs. Shriram Scientific and Industuri, 155 (2008) DLT 1.
(v) Rajinder Pershad (dead) by LRs Vs. Smt. Darshana Devi, AIR 2001 Supreme Court 3207.
9. Ld. counsel for the respondent relied upon Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others, AIR 2005 Supreme Court
439.
10. PW1, Sh. Manoj Kumar Srivastava, deposed that he was working as Dy. Manager (Legal) with the petitioner no. 1 and he was well conversant with the fact of the case. The petition was signed by Sh. Ravinder Kumar Gupta, Managing Director of the petitioners company. The copy of resolution passed by petitioner no. 1 dated 21.10.2004 in favour of Sh. Ravinder Kumar Gupta and Manoj Kumar Srivastava Ex. PW1/1 and resolution passed by petitioner E12/09 & E68/09 Page 11 of 32 //12// no. 2 dated 23.10.2004 in favour of same person Ex. PW1/2. PW1 further deposed that petitioner no. 2 was the owner of property bearing no. 19, Ansari Road, Darya Ganj, New Delhi and the petitioner no. 2 is a sister concern of petitioner no. 1. The petitioner no. 1 allotted the suit premises to the respondent. PW1 further deposed that the respondent was earlier in the employment of petitioner no. 1 and his appointment letter Ex. PW1/8 which bears the signature of respondent at points A and B. The respondent wrote a letter dated 01.09.93 for change of his address Ex. PW1/9. The respondent had tendered his resignation on 14.11.97 which was duly accepted by the petitioner no. 1 and accordingly settled his accounts in full and final. The resignation letter is Ex. PW1/11. However, the respondent again approached the petitioner no. 1 for employment and considering his request, the petitioner no. 1 had appointed the respondent w.e.f 01.05.98 on fresh terms and conditions as Sales Executive. Application alongwith biodate of the respondent is Ex. PW1/12 and appointment letter dated 01.05.98 Ex. PW 1/13. PW1 further deposed that the respondent approached the petitioner no. 1 for allotment of one room accommodation at first floor forming part of property bearing no. 19, Ansari Road, Daryaganj, New Delhi for his residence and the residence of his family members and considering the request of the E12/09 & E68/09 Page 12 of 32 //13// respondent, petitioner no. 1 had allotted one room accommodation to the respondent. The allotted portion is shown in red color in site plan Ex. PW1/14 but the respondent had also illegally encroached upon one room adjacent to the said room, which was earlier allotted to one Sh. Mangal Sen, Xray technician, the said encroached room is shown in green color in the site plan. PW1 further deposed that since 25.03.2003 the respondent was absent from the service without any permission and intimation. The petitioner no. 1 sent several letters to the respondent. The respondent had filed a false and frivolous complaint with the Conciliation Officer, Pusa Road, New Delhi which was duly contested by the petitioner no. 1 and order dated 21.06.2004 passed by the Competent Authority Ex. PW1/20. However, during the pendency of the Conciliation proceedings, the respondent again tendered his resignation letter dated 25.06.2003 which was duly accepted by the petitioner and made full and final payment to the respondent. PW1 further deposed that the accommodation available with the respondent was allotted to him during the course of his employment and during his employment. The respondent was supposed to handover the peaceful vacant possession of the same at the time of abondening his job but he failed to do so and he was in illegal and unauthorized use and occupation of the said accommodation. E12/09 & E68/09 Page 13 of 32
//14// PW1 deposed in his cross examination that there was an authorization in his favour by the petitioners company. He is the employee of M/s S.Chand & Co. Ltd. Group. PW1 further deposed that he is representing both the petitioners and he had deposed on the basis of his personal knowledge as well as records. Respondent had requested for the allotment of accommodation in the year 1993 and 1998. Both the requests were verbal. PW1 admitted that the address of the respondent is 19A, first floor Radha Madha Mandir, Ansari Road, Darya Ganj, New Delhi. Mr. Ravinder Kumar Gupta, the Manging Director of Shyam Lal Nursing Home & Medical, Research Centre (Pvt.) Ltd. is the owner of the property in question. PW1 further deposed that there was a gali between Shyam Lal Nursing Home & Medical, Research Centre (Pvt.) Ltd. and Radha Madha Mandir. Again said no gali separates the Shyam Lal Nursing Home & Medical, Research Centre (Pvt.) Ltd. and Radha Madha Mandir. Some part of the disputed portion is separated from the gali, however the remaining part of the disputed premises is under the ownership of Shyam Lal Nursing Home & Medical, Research Centre (Pvt.) Ltd. PW1 further deposed that he did not remember who had prepared Ex. PW1/14. PW1 further deposed that he did not know whether the disputed property was sold in the year 1984 and the same was purchased in the year 1996 by the Shyam E12/09 & E68/09 Page 14 of 32 //15// Lal Nursing Home & Medical, Research Centre (Pvt.) Ltd. PW1 admitted that the first floor, ground floor, basement of the disputed premises were under the ownership of Shyam Lal Nursing Home & Medical, Research Centre (Pvt.) Ltd. PW1 further admitted that they had claimed damages @ Rs. 10,000/ per month in a suit for damages as the disputed property might fetch rent as Rs. 10,000/ per month.
11. PW2 deposed that earlier he was working with petitioner no. 1 but presently he was working with petitioner no. 2. The site plan was prepared under his instruction and the same is Ex. PW2/2. PW2 deposed in his cross examination that the first site plan was not correct. The mistake in the first site plan was regarding the three rooms which were encroached by the respondent, were not correctly shown in color as mentioned in the petition. PW2 further deposed that there was no difference between the first site plan and the second site plan except the difference of color. PW2 admitted that no gali had been shown in Ex. PW2/2. PW2 further deposed that the property regarding which the present matter was going on has been shown in the site plan Ex. PW2./2 therefore, gali had not been shown. The gali shown in Ex. PW1/14 was not dividing the Shyam Lal Nursing Home & Medical, E12/09 & E68/09 Page 15 of 32 //16// Research Centre (Pvt.) Ltd. and the disputed property. Shyam Lal Nursing Home & Medical, Research Centre (Pvt.) Ltd. was owned by the same person and it was left by the owner for the passage. It is a common passage between the same property. PW2 further deposed that Sh. Ravinder Kumar Gupta had authorized him vide dissolution Ex. PW2/1 to appear. PW2 further deposed that there were two Directors in the Board of meeting when Ex. PW2/1 was passed. Sh. Ravidner Kumar Gupta is not the Director of petitioner no. 1 but he is Director of petitioner no. 2.
12. RW1 deposed that the petitioner had deliberately given incomplete address of the respondent and the disputed property was distinct property and not a part of the petitioner property. RW1 further deposed that he had been residing in the disputed property in his own capacity. His father Late Sh. C.K.Mishra was pujari/priest of Radha Madhav Mandir since 1965 and since then he was in possession of the disputed property. His father alongwith other members of the community had constructed the said mandir after collecting donation from public. He was living in the disputed property alongwth his father. RW1 further deposed that he joined the petitioner no. 1 on 03.09.1992. His father was suffering from cancer therefore, he had started E12/09 & E68/09 Page 16 of 32 //17// living with him from 1995. He had requested to the officials of petitioner no. 1 to change his address but they threatened that if he insisted he would had to resign from the job. Therefore, on 25.06.2003 he resigned from the petitioner no. 1. RW1 further deposed that he was appointed afresh on 01.05.1998. He was in continuous employment of petitioner no. 1 from 03.09.1992 to 25.06.2003. RW1 further deposed that he was not allotted the suit premises by the petitioner no. 1 in the course of his employment. RW1 filed his additional affidavit Ex. RW1/A1 and stated that the site plan filed by him was correct and the same Ex. RW1/11. RW1 further deposed that he was residing beyond six feet gali between Shyam Lal Nursing Home & Medical, Research Centre (Pvt.) Ltd. and the property of the respondent and the same divided the Shyam Lal Nursing Home & Medical, Research Centre (Pvt.) Ltd. and his property. The site plan filed by the petitioner is incorrect.
13. RW1 deposed in his cross examination that the property no. 4634/1 is not mentioned in his affidavit Ex. RW1/A. The property no. 4634/1 is a part of 19A, Ansari Road, Darya Ganj, Delhi. RW1 admitted that Radha Madhav Mandir is situated in the property bearing no. 4634/1 forming part of property no. 19A, Ansari Road, Darya Ganj, Delhi. RW1 further admitted that the E12/09 & E68/09 Page 17 of 32 //18// disputed property is above the property in respect of which he had filed the certified copies Ex. RW1/1, Ex. RW1/3 and Ex. RW1/4. Smt. Nirmala Gupta had been shown herself as an owner of the suit property. RW1 further deposed that he had received the details of sale deed Ex RW1/1, RW1/3 and RW1/4 from their owners. Nobody is the owner of ground floor and basement of the property in question. RW1 further deposed that he had no documentary proof to show that his father was in possession of the suit property since 1965. RW1 further admitted that neither he nor his father was having any titled document in respect of suit property. RW1 further deposed that he knew technician namely Mangal Sen, Mangal Sen was residing above the Shyam Lal Nursing Home. Volunteered at the third floor. Again said he did not know who was residing at the third floor at the Shyam Lal Nursing Home. RW1 further deposed that he was in possession of the suit premises since 1965. RW1 admitted his signature at point A and B in Ex. PW1/7. RW1 further admitted his signature at point A in Ex. PW1/9 and the same was written by his own hand. RW1 also admitted his signature at point A in Ex. PW1/8 but do not remember whether Ex. PW1/11 bears his signature. RW1 further admitted that in the month of March, 1998 his address was 1924, Gali Laheswa, Sita Ram Bazar, Delhi but he voluntarily deposed that E12/09 & E68/09 Page 18 of 32 //19// he was also residing in the suit premises. RW1 further admitted his signature at point A in Ex. PW1/11 and the said letter is in his writing. RW1 further deposed that he had resigned due to force of the management but his resignation was not accepted and his job was continued. RW1 also admitted his signature at point A in Ex. PW1/13. RW1 further deposed that he had not filed any complaint against the alleged force by the management because the management had threatened him to out from the job. RW1 admitted his signature at point A on Ex. PW1/19. RW1 also admitted the order Ex. PW 1/20 passed by Labour Commissioner. RW1 also admitted his signature at point A in Ex. RW1/X and his biodata Ex. RW1/X1.
14. RW1 further deposed that he resided above the temple known as Radha Madhav Mandir at first floor. Again said Sh. H.K.Goswamy resided at the first floor. RW1 further admitted that Sh. H.K.Goswamy was in possession in adjacent room to the suit premises. RW1 further deposed that he had permitted Sh. H.K.Goswamy to reside there for the time being. RW1 further deposed that he had been taking electricity from Radha Madhav Mandir and the meter is in the name of Radha Madhav Mandir. RW1 further admitted that Shyam Lal Nursing Home was making the payment for E12/09 & E68/09 Page 19 of 32 //20// electricity charges. RW1 further admitted that the documents Ex. RW1/X4, RW1/X5 and RW1/X6 are after the year 1998.
15. Section 14 (1) (i) of DRC Act provides as under : That the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment ;
16. Section 22 of DRC Act provides as under : Special provision for recovery of possession in certain cases. Where the landlord in respect of any premises is any company or other body corporate or any local authority or any public institution and the premises are required for the use of employees of such landlord or in the case of a public institution, for the furtherance of its activities, then, notwithstanding anything contained in Section 14 or in any other law, the Controller may, on an application made to him in this behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied : E12/09 & E68/09 Page 20 of 32
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(a) that the tenant to whom such premises were let for use as residence at a time when he was in the service or employment of the landlord, has ceased to be in such service or employment ; or
(b) that the tenant has acted in contravention of the terms, express or implied, under which he was authorized to occupy such premises ; or
(c) that any other person is in unauthorized occupation of such premises ;
or
(d) that the premises are required bonafide by the public institution for the furtherance of its activities.
Explanation. For the purposes of this section, "public institution" includes any educational institution, library, hospital and charitable dispensary.
17. The present petitions were filed u/s 14 (1) (i) of DRC Act and Section 22 of DRC Act. Under the provisions of both the abovesaid sections the petitioners have to prove that the respondent was working with the petitioner no. 1 company and let out the suit premises to the respondent as its employee and the respondent is no longer in employment with the petitioner no. 1. It is not in dispute that the respondent has joined the petitioner no. 1 company in the year 1992. It is also not in dispute that the respondent was in E12/09 & E68/09 Page 21 of 32 //22// the employment of the petitioner no. 1 in the year 1998. The sale deed Ex. PW1/4 also proves that petitioner no. 2 purchased the suit property. Petitioner no. 1 is merely claiming its landlordship qua the suit premises as allotted it to the respondent being its employee to live alongwith his family. It is well settled that landlord is not required to prove absolute ownership u/s 22 and u/s 14 (1) (i) of DRC Act. It is held in Kamla Rani & Ors. Vs. Texmaco Ltd. (supra) that u/s 14 (1) (i) of DRC Act ownership is not relevant for the reason a person may be landlord without being an owner. It is held in T.R.Balasubramanian Vs. Shriram Scientific & Industrial Research that section 14 (1) (i) of DRC Act does not require that employer should be owner of the building or premises given on rent to the employee as tenant.
18. I am of the considered view that as there is no dispute that respondent was in the employment of the petitioner no. 1 in the year 1998 and it is also not in dispute that respondent is in possession of the suit premises, and it is also established that petitioner no. 2 had purchased the property bearing no. 4364/1 building no. 19, Ansari Road, Darya Ganj, New Delhi, therefore, the burden shifts upon the respondent to prove that the suit premises was not let E12/09 & E68/09 Page 22 of 32 //23// out to him by the petitioner no. 1 company as its employee and he is in possession of the suit premises in his own capacity. The contention of the respondent is that his father was a pujari in Radha Madhav Mandir and since 1965 his father was in possession of the suit premises. The further contention of the respondent is that his father alongwith other members of the committee had constructed the said mandir after collecting donation from public. The further case of the respondent is that his father suffered from cancer, therefore, he had started living with his father from 1995. The respondent had requested to the officials of the petitioner no. 1 to change his address but they did not do so and insisted that he would had to resign from the job, if he wanted to change his address. The respondent has failed to prove that his father was a pujari in Radha Madhav Mandir and he is in possession of the suit premises since then. The respondent had not filed any document to show the presence of his father in the suit premises since 1965. The period from 1965 till 1995 is a very long period of 30 years. It is difficult to believe that a person who lived in a premises for 30 years but he has no document to show his presence in the suit premises. The respondent has even not called any independent witness from the locality to establish that his father was a pujari in Radha Madhav Mandir and he was in possession of the suit premises since E12/09 & E68/09 Page 23 of 32 //24// 1965. On the other hand petitioner had proved the agreement for training Ex. PW1/7, a letter written by the respondent to the petitioner no. 1 for change of his address Ex. PW1/9, letter of appointment Ex. PW1/8 showing the address of the respondent as 1924, Gali Lehswa, Bazar Sita Ram, Delhi6, a letter dated 18.03.98 again showing the address of the respondent as 1924, Gali Lehswa, Bazar Sita Ram, Delhi6 alongwith telephone number. Biodata of the respondent dated 18.03.98 again shows the address of the respondent as 1924, Gali Lehswa, Bazar Sita Ram, Delhi6. It is important to mention here that the respondent has not disputed his signature on Ex. PW1/7, Ex. PW1/9 and Ex. RW1/X. The question arise, if the petitioner was residing in the suit premises since 1965 then why did he not mention his address as of suit premises in his application Ex. PW1/11 dated 18.03.98 and in his bio data Ex. RW1/X. The contention of the respondent that petitioner has not allowed him to change his address as of suit premises has no substance and it is merely a moon shine plea of the respondent. There are further contradictions in the stand of the respondent. The respondent claimed that he joined the service with petitioner no. 1 in the year 1992 and continued till 2003, however from the documents which were written/submitted by the respondent with the petitioner no. 1 prove that he had resigned from the E12/09 & E68/09 Page 24 of 32 //25// service in the year 1997. The resignation letter dated 14.11.1997 written by the respondent to the petitioner no. 1 company bears his signature at point A clearly proves that he had resigned from the service on 14.11. 1997. The application dated 18.03.98 Ex. PW1/11 for the post of sales executive again proves that the respondent had reapplied for the employment with the petitioner no.1 and also submitted his biodata Ex. RW1/X which bears his signature at point A. The letter of appointment dated 01.05.98 Ex. PW1/13 also bears the signature of the respondent at point A which further proves that respondent was reappointed by the petitioner no. 1 in the year 1998. The respondent has not brought anything on record to show the abovesaid documents as forged. It is well settled law that the documentary evidence is more reliable then the oral evidence. A man can lie but not a document. The mere plea of the respondent that his signatures were obtained under force and coercion has no merit in the absence of any material on record in this regard. The order of Conciliation Officer/Labour Commissioner Ex. PW1/20 dated 21.06.2004 also proves that the respondent has submitted his resignation on 14.11.97 and again rejoined on 01.05.98 but he had concealed the facts from said authorities. The respondent has not challenged the order dated 21.06.2004 of the Conciliation Officer, therefore, the plea of E12/09 & E68/09 Page 25 of 32 //26// the respondent that he continuously worked with the petitioner no. 1 from 1992 to 2003 has no merit.
19. The further contention of the respondent that the address of the premises which is in his possession is 4634/119A Ansari Road, Delhi and not 19, First Floor, Radha Madhav Mandir, Ansari Road, Daryaganj, Delhi has no substance because he has not filed any document prior to 1998 to show the address of the premises. The respondent has also not summoned any witness from the Municipal Corporation to establish that the number of the premises in his possession is first floor Radha Madhav Mandir, 4634/119A Ansari Road, Delhi. Ld. counsel for the respondent submitted that the site plan filed by the petitioner is incorrect, therefore, cannot be relied upon. Ld. counsel further submitted that the petitioner has tried to encroached the gali as its own property but the said gali does not belongs to the petitioner. The respondent has filed the copy of sale deed Ex. RW1/1 alongwith copy of site plan. The said site plan is regarding the basement floor of property no. 4634/1, 19 Ansari Road, Darya Ganj, Delhi. In the said basement floor an open passage has been shown for making entry into the property no. 19, Ansari Road. From this site plan it is proved that the open portion to which the E12/09 & E68/09 Page 26 of 32 //27// respondent claiming as gali is a part of entire property no. 19, Ansari Road. It is not a Municipal gali or street as alleged by the respondent. Even otherwise, the suit premises which is in possession of the respondent is on first floor and it has no concern with any such gali. So far the question of wrong site plan of the petitioners is concerned, perusal of records reveals that the petitioner has moved an application u/o 6 rule 17 CPC seeking the permission to file the new site plan and the said application was allowed vide order dated 29.09.2010. The only difference between the first site plan Ex. PW1/14 and the new site plan Ex. PW2/2 is regarding the description of color of the premises which was let out to the respondent and the premises which was encroached by the respondent. The petitioner has stated in the petition that the premises which was let out to the respondent has been shown in red color and the premises which was encroached by the respondent is shown in green color. However, in the site plan Ex. PW1/14 the premises which was encroached by the respondent has been shown in red color. As the application of the petitioner to file fresh site plan was allowed vide order dated 29.09.2010, therefore, the fresh site plan would only be considered and the site plan Ex. PW1/14 cannot be considered. Ld. counsel for the respondent further submitted that the petitioner no. 1 appointed Sh. Ravinder Kumar E12/09 & E68/09 Page 27 of 32 //28// Gupta regarding the present petition but Sh. Ravinder Kumar Gupta further authorised Sh. Manoj Kumar Srivastava to appear and give evidence. Ld. counsel further submitted that Sh. Manoj Kumar Srivastava and H.K.Goswamy being agents of Sh. Ravinder Kumar Gupta have no authority to depose, therefore, their evidence cannot be relied upon. I do not find any substance in the submission of Ld. counsel for the respondent. The petitioner no. 1 has appointed Sh. Ravinder Kumar Gupta and Sh. Manoj Kumar Srivastava vide resolution dated 21.10.2004 Ex. PW1/1, therefore, the question of further authorizing Sh. Manoj Kumar Srivastava by Sh. Ravinder Kumar Gupta does not arise. Similarly, the petitioner no. 2 has authorized Sh. Ravinder Kumar Gupta and Sh. Hari Kishan Goswamy (H.K.Goswamy) vide resolution dated 11.01.2011 Ex. PW2/1. The ruling relied upon by the Ld. counsel for the respondent is not applicable to the facts of the present case because the petitioner no. 1 and 2 are company and a company cannot come itself to give its evidence. The company has to authorize someone to give evidence on its behalf, therefore, the petitioner no. 1 has authorized Sh. Manoj Kumar Srivastava, PW1 and petitioner no. 2 has authorized PW2, Sh. H.K.Goswamy. PW1 and PW2 were not authorized by Sh. Ravinder Kumar Gupta as alleged by the respondent. Ld. counsel for the respondent further E12/09 & E68/09 Page 28 of 32 //29// submitted that the petitioner no. 2 had already sold the suit premises vide sale deeds Ex. RW1/1 dated 30.06.1991 and by sale deeds Ex. RW1/3 and RW1/4 both dated 09.09.94, therefore, the petitioner no. 2 is not the owner of the property in question. I have perused all the three sale deeds Ex. RW1/1, RW1/3 and RW1/4. The petitioner no. 2 had only sold basement portion vide sale deed Ex. RW1/1 and half portion of the ground floor in the rear annex block of property no. 4364/1 building no. 19, Ansari Road, Darya Ganj, New Delhi vide sale deeds Ex. RW1/3 and RW1/4 each. However, the suit premises is on the first floor, therefore, from the documents filed by the respondent it is not proved that the petitioner no. 2 has sold the suit property.
20. It is important to mention here that on the one hand the respondent is claiming that the number of the property in his possession is 4634/119A, first floor Radha Madhav Mandir, Ansari Road, Delhi and on the other hand he has tried to established that the suit property was already sold by the petitioners vide sale deed Ex. RW1/3 and RW1/4. However the number of property given in the sale deed Ex. RW1/3 and RW1/4 is only 4634/1 building no. 19, Ansari Road, Darya Ganj, New Delhi, therefore, the contention of the respondent that the number of the suit premises is 4634/1 E12/09 & E68/09 Page 29 of 32 //30// 19A Ansari Road, Delhi is contradictory. The respondent has also filed copy of an Indemnity Bond of Smt. Nirmala Gupta alongwith her affidavit which is marked D. It is stated in the Indemnity Bond that Smt. Nirmala Gupta W/o Sh. R. K. Gupta r/o 89, Punchvati, Okhla Morh, Delhi is lawful owner of Radha Madhav Temple, 19 Ansari Road, Daryaganj, New Delhi and she had applied for electricity connection. The respondent has also admitted in his cross examination that the electricity meter is lying in the name of the petitioners and they are paying the electricity bills. From these facts again it is proved that the petitioners are owner of the premises in question and the contention of the respondent that the petitioner have already sold the suit property is a bald plea.
21. In view of the above discussion, it is proved that neither the respondent nor his father was in possession of the suit premises since 1965. The respondent has also failed to establish that he is in possession of the suit premises in his own capacity. On the other hand the petitioners have proved that the respondent rejoined the petitioner no. 1 company on 01.05.1998 and the petitioner no.. 1 allowed the respondent to live in one room on the first floor in property no. 19, Radha Madhav Mandir, Ansari Road, Darya Ganj, E12/09 & E68/09 Page 30 of 32 //31// New Delh being its employee. The petitioner no. 1 had given only one room to the respondent to live, however, the respondent had encroached the adjacent accommodation as shown in green color in the site plan. It is held in Sukumari Dass and Ors. Vs. Musst Saleha Khatoon and Ors., 2011 (1) RCJ 19 (Cal.) that in course of eviction proceedings against a tenant if it is found that tenant concerned has trespassed into other portions of suit holding which lie outside demised premises and has made unauthorized constructions thereon, decree for eviction can also be passed in respect of trespassed area provided there are proper pleadings and evidence in support of such case. It is not necessary to relegate a plaintiff to another suit for such purpose. It is also proved that the respondent has resigned from the petitioner no. 1 company in the year 2003. As the respondent is no more in the employment of petitioner no. 1, therefore, he is liable to be evicted of the suit premises u/s 14 (1) (i) of DRC Act. The petitioners have also proved that petitioner no. 1 requires the suit premises for the use of its employees, therefore, the petitioners are also entitled for an eviction order u/s 22 of DRC Act.
22. Accordingly, both the eviction petitions u/s 14 (1) (i) of DRC Act as well E12/09 & E68/09 Page 31 of 32 //32// as u/s 22 of DRC Act are allowed and eviction orders are passed u/s 14 (1) (i) of DRC Act as well as u/s 22 of DRC Act in favour of the petitioners and against the respondent in respect of the suit premises i.e one room at first floor and side adjacent room with three partition portion encroached by the respondent, as shown in red and green colors respectively in the site plan Ex. PW2/2 forming part of property No. 19, Radha Madhav Mandir, Ansari Road, Darya Ganj, New Delhi.
File be consigned to record room.
(Announced in the open court
on 19.11.2011) (Pritam Singh)
ARC/Central/Delhi
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