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Delhi District Court

Sh. Sanjay vs Sh. Kundan Lal on 23 April, 2015

  IN THE COURT OF SH. RAJINDER SINGH, ADMINISTRATIVE
  CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER-CUM-
         COMMERCIAL CIVIL JUDGE (NORTH-EAST),
                  KKD COURTS, DELHI.

E. No. 58/14
Unique Case ID No.: 02402C0374962014

In the matter of :


      Sh. Sanjay
      S/o Sh. Lalta Parsad
      R/o 1908, Gali Mata Wali,
      Chandni Chowk,
      Delhi-110006.
                           .......Petitioner/Landlord

                            Versus

      Sh. Kundan Lal
      S/o Sh. Beni Singh
      R/o New No. B-102/1, Old no. B-457/1,
      Madhu Kunj Gali, Shivaji Road,
      North Ghonda,
      Shahdara,
      Delhi-53.
                            ......Respondent/Tenant



Date of Institution         :     24.11.2014
Order reserved on           :     13.04.2015
Date of Pronouncement       :     23.04.2015




E. No. 58/14                                      Page 1 of 12
 ORDER ON THE APPLICATION FOR EVICTION UNDER
SECTION 14 (1)(e) r/w SECTION 25 B OF THE DELHI RENT
                   CONTROL ACT, 1958

ORDER :

1. The petitioner has filed the present Eviction Petition under Section 14(1)(e) r/w Section 25 B of the DRC Act. It is stated that one shop is situated at the ground floor in property no. B-102/1 (Old no. B-457/1), Madhu Kunj, Shivaji Road, North Ghonda, Shahdara, Delhi (hereinafter referred as "tenanted shop"), more specifically shown in red colour in the site plan. The same was let out to the respondent by the petitioner. The petitioner is the landlord and owner of the tenanted shop. The rate of rent is Rs.1,000/- p.m. excluding other charges.

1.1. It is stated that the petitioner is running a kachori (snacks) stall on the footpath in front of Shri Ram Hari Ram Jewelers, Dariba, Chandni Chowk. Due to the MCD regulations and strictness of the law enforcing agencies, the petitioner is facing lot of problems in running the said stall. 1.2. The tenanted shop is required by the petitioner for his own use. It is further stated that the tenanted shop is situated on the ground floor in a busy market. The same is suitable for setting up the said business. Apart from the tenanted shop the petitioner and his family members do not E. No. 58/14 Page 2 of 12 have any other commercial accommodation.

2. Leave to defend alongwith affidavit filed by the respondent. It is stated that the respondent is not the tenant of Smt. Mohini Devi as alleged by the petitioner? On 22.10.84 the said Mohini Devi took a friendly loan of Rs.10,500/- from the respondent. This transaction was witnessed by two witnesses namely Sh. Brij Mohan Singh and Sh. Kanta Parsad. In lieu of afore-mentioned amount Ms. Mohini Devi handed over the peaceful possession of the tenanted shop to the respondent. Mohini Devi failed to repay the aforesaid amount. Thereafter the respondent asked Mohini Devi to execute title documents in his favour, regarding the tenanted shop. On one pretext or the other Ms. Mohini Devi always avoided executing the said documents.

2.1. Upon further reading of the affidavit of the respondent it is seen that Ms. Mohini Devi was the grandmother of the petitioner. In the petition I could not find any facts as to how the petitioner got the property comprising the tenanted premises/shop. However, in the affidavit of respondent it is stated that as per the petitioner the property in question (tenanted shop) is claimed by the petitioner on the basis of the Will executed by his grandmother Ms. Mohini Devi. It is stated that no title documents regarding the tenanted shop, in the name of Ms. Mohini Devi are placed on record.

2.2 The petitioner and his family members are having the following properties:

a. Property no. B-457, North Ghonda, Shahdara, Delhi. The petitioner is receiving rent of this property. b. Property no. B-61, Shivaji Road, Subhash Mohalla, North Ghonda, Shahdara, Delhi.

c. Property no. 1908, Gali Mata Wali, Chandni Chowk, Delhi-110006.

2.3 It is alleged that many more properties are owned by the petitioner and his family members. It is stated that the petitioner has not filed the correct site plan of the tenanted shop. The said Mohini Devi was never acknowledged as the landlady of the tenanted shop. Further, the respondent has repeated his averments in the affidavit.

3. Reply to the leave to defend alongwith affidavit filed. Apart from denying the case of the respondent, it is stated that the respondent has failed to show that any person other than the petitioner is the owner of the tenanted shop. It is stated that property no. 1908 in Gali Mata Wali, Chandni Chowk, Delhi is a residential premises. The same does not cater to the need of the petitioner for commercial space.

Property no. B-457, North Ghonda, Shahdara belongs to the real uncle of the petitioner. Property no. B-61, Shivaji Road, Subhash Mohalla, North Ghonda is a temple and the same E. No. 58/14 Page 4 of 12 could not be used for any commercial purpose.

4. The petitioner has filed photocopy of the Will dated 04.01.14 made by Ms. Mohini Devi the late grandmother of the petitioner. By virtue of this Will the property comprising of the tenanted shop has been bequeathed to the petitioner. One photocopy of the house-tax assessment of the property in question, in the name of late Ms. Mohini Devi is also filed.

5. Arguments heard.

5.1. It was argued on behalf of the petitioner that his stall is in Dariba Kala. Due to the strictness by the agencies concerned, the business of the petitioner has suffered. He is able to sell kachoris at his stall between 8 p.m. to 10 p.m. The tenanted shop is required bonafide by the petitioner to start his business therein.

5.2. Ld. Counsel for the petitioner relied upon Judicial pronouncements/ authorities reported as Rakesh Sud vs. Arun Kumar Gupta, 189 (2012) DLT 161, Shiv Sarup Gupta vs. Dr. Mahesh Chand, 1999 Rajdhani Law Reporter (SC) 417, Ramesh Chand Gulati & Anr. vs. Lalit Kumar & Ors., 190 (2012) DLT 222, Harsh Kumar & Ors. vs. Manmohan & Ors., in R.C. Rev. No. 524 of 2011 and C.M. Nos. 22653 to 54 of 2011 dated 06.3.12, Daya Ram Prajapati vs. Smt. Vidya Devi in R.C. Rev. No. 458 of 2012 and C.M. Nos. 15720 to 21 of 2012 dated 20.9.12, Ashwani Kumar & Ors. vs. Attaur Rehman & Ors. in R.C. Rev. No. 3 of 2012 dated E. No. 58/14 Page 5 of 12 09.7.12, Sant Lal vs. Rajinder Kumar, 189(2012) DLT 137, S. Harbant Singh Sahni & Anr. vs. Smt. Vinod Sikri, 189(2012) DLT 215 and Nawal Kishore Khandelwal vs. Kuntidevi, 2013(1) Rajdhani Law Reporter (SC) 293. 5.3 It was argued on behalf of the respondent that late Mohini Devi, grandmother of the petitioner gave possession of the tenanted shop to the respondent. She took a loan of Rs. 10,000/- (sic) from the respondent. She could not repay the same. Due to this reason she handed over the vacant peaceful possession of the tenanted shop to the respondent. The petitioner is residing at Chandni Chowk near the kachori stall which he is running. The temple owned by the petitioner is a reasonably suitable alternative accommodation. Mohini Devi was not the landlady of the respondent. 5.4. Ld. Counsel for the respondent relied upon Judicial pronouncements/ authorities reported as Mohd. Jafar & Ors. vs. Nasra Begum, 191(2012) DLT 401, Santosh Devi Soni vs. Chand Kiran , JT 2000(3) 397, Narender Kumar Manchanda & Anr. vs. Hemant Kumar Talwar, 197 (2013) DLT 171, Khem Chand & Ors. vs. Arjun Jain & Ors., 2013(4)CLJ 306 Del., Ramesh Chander Agarwal & anr. vs. Jaan Nath & anr., 2012(4) CLJ 462 Del. and Deepak Gupta vs. Sushma Aggarwal, 2013(3) CLJ 717 Del.

5.5. Written submissions also filed by the respondent. Written submissions filed by the respondent perused. In the E. No. 58/14 Page 6 of 12 written submissions the respondent has repeated the contents of the affidavit accompanying the leave to defend. Judicial pronouncements/authorities relied upon by the parties perused.

6. To decide an eviction petition u/s 14(1)(e) of the DRC Act, the following points are to be considered/proved by the petitioner:

(A) Landlord-tenant relationship between the petitioner and the respondent and the petitioner is the owner of the tenanted premises;

(B) that the need of the petitioner and/or his family member(s) is bonafide;

(C) lack/non-availability of reasonably suitable alternative accommodation for the bonafide needs of the petitioner/his family member(s).

(A) Landlord-tenant relationship between the petitioner and the respondent and the petitioner is the owner of the tenanted premises;

6.1. The respondent has disputed the landlord-tenant relationship between the petitioner and himself. The respondent has denied that Ms. Mohini Devi, late grandmother of the petitioner was his landlady regarding the tenanted shop. The respondent has alleged that on 22.10.84 E. No. 58/14 Page 7 of 12 late Mohini Devi took a friendly loan of Rs.10,500/- from the respondent. She could not repay the same and thereafter in lieu of the said amount the vacant peaceful possession of the tenanted shop was handed over to the respondent. 6.2. Inter alia, a person can be in possession of an immovable property in the following capacities, firstly as an owner, secondly as a trespasser, thirdly as a tenant, fourthly as a licensee and fifthly as a permissive possessor. 6.3. In the present matter the respondent has not claimed himself to be the owner of the tenanted shop nor he has claimed himself to be a licensee or trespasser in the tenanted shop. The respondent has claimed that in lieu of the loan taken by Ms. Mohini Devi (which she could not repay) she handed over the vacant peaceful possession of the tenanted shop to the respondent. It appears that purposefully the respondent has kept quite about his capacity in which he is holding possession of the tenanted shop. The transaction alleged by the respondent between himself and Ms. Mohini Devi does not transfer ownership in immovable property. The Will relied upon by the petitioner is not denied or challenged by the respondent. In the written submissions it is stated that daughter and son-in-law of late Ms. Mohini Devi are also claiming to be the owners of the tenanted shop. It is settled law that any of the LRs of the deceased landlady/landlord can file a petition u/s 14(1)(e) of the DRC Act.

6.4. Under the DRC Act a person receiving the rent of a property is the landlord. Any person who would be entitled to collect the rent if the property was rented out is also the landlord. In the present case the petitioner claims to have received the tenanted shop from his grandmother through a Will. The same has not been challenged. In view of this the petitioner would be the person entitled to receive the rent of the tenanted shop if the same was let out. As already observed above, the respondent has not clarified in what capacity he is holding the possession of the tenanted shop. If the version of the respondent is believed, at best he is a permissive possessor of the tenanted shop, since the alleged transaction in lieu of the unrepaid loan would not create any rights in the immovable property (tenanted shop) in favour of the respondent. Here the petitioner has stated that the respondent is a tenant in the tenanted shop. This affords greater protection under the law, against eviction to the respondent. The version of the respondent is highly unbelievable. Even if the version of the respondent is believed at best he is a permissive possessor of the tenanted shop. In view of the above, this court is of the considered opinion that the respondent is a tenant in the tenanted shop. By virtue of the Will relied upon by the petitioner, he is the landlord of the tenanted shop. Accordingly, the landlord-tenant relationship between the petitioner and the respondent is established.

(B) That the need of the petitioner and/or his family member(s) is bonafide;

6.5. The petitioner has stated that he is running a kachori (snacks) stall on road in front of Shri Ram Hari Ram Jewelers, Dariba, Chandni Chowk. Due to the strictness by the civic agencies and law enforcement agencies he is facing a lot of problems in running the kachori stall. It was argued on behalf of the petitioner that he is able to run the stall only between 8 p.m. to 10 p.m. It was argued on behalf of the respondent that stall in Chandni Chowk is situated close to the residence of the petitioner. It is pertinent to observe that the landlord is the best judge of his needs.

6.6. At present the petitioner is running his business at a road side stall. Although no work is mean work/job, it is always desirable for any stall owner to run his business in a well constructed shop. It is not disputed by the respondent that the petitioner is facing difficulties in running his stall or that he is able to run stall only for a limited period of time between 8 p.m. to 10 p.m. The respondent has relied upon certain judicial pronouncements/authorities. Some of them are dealing with the aspect of additional accommodation sought by the petitioner. In the present case it is not clear whether the petitioner is seeking additional accommodation or he wants to shift his entire business to the tenanted shop. The respondent also did not raise this query. Due to this reason the authorities E. No. 58/14 Page 10 of 12 relied upon by the respondent are not applicable to the present case. The need of the petitioner to shift his business to a properly constructed shop and increasing his income, is a bonafide need. Accordingly, it is held that need of the petitioner regarding the tenanted shop is a bonafide. (C) Lack/non-availability of reasonably suitable alternative accommodation for the bonafide needs of the petitioner/his family members.

9.6. The onus to prove the availability of the reasonably suitable alternative accommodation is upon the respondent. In his affidavit the respondent has enumerated three properties and cited them as reasonably suitable alternative accommodation. In his counter affidavit the petitioner has stated that property no. 1908, Gali Mata Wali, Chandni Chowk is a residential property. The same is used as residence by the petitioner and his family. Property no. B-457, North Ghonda, Shahdara, Delhi belongs to his real uncle. Property no. B-61 Shivaji Road, Subhash Mohalla, North Ghonda, Shahdara, Delhi is a temple. It is not denied by the respondent that the property at Shivaji Road is a temple. The averments of the petitioner regarding these properties are not refuted by the respondent. The first property being residential property cannot be used for commercial purpose. The second property is not owned by the petitioner. The third property is undisputedly a temple. The same cannot be used for E. No. 58/14 Page 11 of 12 commercial purpose. No other property is mentioned by the respondent. Accordingly, the respondent has failed to show that the petitioner has any reasonably suitable alternative accommodation for his bonafide needs.

10. In view of the above, this Court is of the considered opinion that the respondent has failed to raise any triable issue. Accordingly, leave to defend sought by the respondent is dismissed. The eviction petition filed by the petitioner is allowed. Further, the petitioner shall not be entitled to obtain the possession of the aforesaid tenanted premises from the respondent before expiry of period of six months from the date of passing of this order as prescribed u/s 14 (7) of the DRC Act. The eviction petition under Section 14 (1) (e) r/w section 25-B DRC Act is accordingly disposed of. No order as to costs.

File be consigned to Record Room after due compliance.

PRONOUNCED IN OPEN COURT 23.04.2015 (RAJINDER SINGH) ACJ/ARC/CCJ (NE)/ KKD COURTS, DELHI.