Delhi District Court
Gurudwara Sri Guru Singh Sabha (Regd.) vs S. Darshan Singh on 8 July, 2015
In the Court of Shri Naresh Kumar Laka
Senior Civil Judge-cum-Rent Controller
District Shahdara, Karkardooma Courts, Delhi
E. No. 663/06
Unique ID No. 02402C0433262006
Gurudwara Sri Guru Singh Sabha (Regd.)
Plot No. R-3, A-Block, Preet Vihar,
Delhi- 110092
Through its President
.....Petitioner
Versus
S. Darshan Singh
S/o S. Bent Singh,
Shop No. 1, Gurudwara,
Plot No. R-3,
A-Block, Preet Vihar,
Delhi 110092
....Respondent
Date of institution of petition : 02.08.2006
Judgment reserved on : 05.06.2015
Judgment announced on : 08.07.2015
Final Order : Petition allowed.
Application/Petition under Section 22 of
the Delhi Rent Control Act, 1958
JUDGMENT
Brief Facts: The present petition has been filed seeking eviction under Section 22 of the Delhi Rent Control Act, 1958 (in short "The E. No. : 663/06 Page No. 1 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh Act") by petitioner/Gurudwara against the respondent who is a tenant in respect of a shop situated in the premises of said Gurudwara bearing plot no. R-3, Block A, Preet Vihar, Delhi 110092 (as shown in the site plan attached with the petition). It is claimed that the shop in question is required for extending the facility of dispensary to provide medical treatment and medicines to the needy patients and the space already available with the petitioner is not sufficient.
2. The respondent contested this case and filed written statement stating therein that the present petition under Section 22 of the Act is not maintainable and it has to be filed under Section 14 of the Act. It is also claimed that the petitioner/Gurudwara is not covered within the definition of company, corporate body, local body or public institution as an entity specified in Section 22 of the Act. It is further claimed that previously the petitioner had sent a notice for eviction on the ground that the shop in question is required to be demolished as per MCD Orders and thereafter the present petition has been filed with mala fide intention on different grounds just to seek eviction. The respondent also claimed that there are already sufficient accommodations available with the petitioner on its basement, ground floor as well as upper floors.
3. The petitioner filed replication to the written statement of the respondent wherein the allegations of the respondent were E. No. : 663/06 Page No. 2 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh controverted and the stands taken in the petition were reiterated.
4. In order to prove its case, the petitioner examined Sh. Kuldeep Singh as PW1 (a member of said Gurudwara). Likewise, the respondent also examined himself/herself as RW1. Both the parties also relied on various documents which will be referred to by their description wherever required.
5. I have heard Sh. J. K. Chawla and Sh. N. K. Sethi, learned counsel for the petitioner and Sh. Sudhir Nagar, learned counsel for the respondent. Written arguments were also filed on behalf of respondent. File perused. Submissions considered.
REASONS FOR DECISION
6. From the pleadings of the parties as well as submissions of the counsel, following points emerged which require determination of this court:
(1) Maintainability of the present case under Section 22 of the Act (2) Bona fide requirement of the petitioner (3) Existence of alternative suitable accommodation (1) Maintainability of the present case under Section 22 of the Act E. No. : 663/06 Page No. 3 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh Question of public institution or private institution
7. At the outset, the learned counsel for the respondent vehemently argued that the petitioner has not proved the fact that it is a registered society by not summoning/proving the record from the concerned Registrar of Societies. He also specifically argued that the aims and objectives of the said society also remained unproved and the same cannot be relied in the present petition for any purpose. The learned counsel also forcefully contended that the petitioner is not a 'public institution' within the meaning of Section 22 of the Act nor it has been pleaded in the present case.
8. From the plain reading of the Section 22 of the Act, it is clear that it specifically provides four corpus/entities who can seek eviction, i.e., (i) the company, (ii) body corporate, (iii) local authority and
(iv) a public institution. From the conjoint reading of entire Section 22 of the Act, it is clear that the first three categories i.e. company, body corporate and local authority can seek eviction only if the premises is required for bona fide use of their employees but in the instant case, no such requirement for the employees of the petitioner has been pleaded. Thus it is apparently clear that the petitioner did not intend to be an entity in any of the first three categories i.e. company, body corporate or local authority.
9. No doubt there is no specific mention in the petition that the E. No. : 663/06 Page No. 4 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh petitioner is a public institution but when the present petition has been filed under a specific provision i.e. Section 22 of the Act, this court can examine the status of petitioner on the basis of substance of the petition by reading it as a whole. In the instant case, the petitioner specifically pleaded that it is running a dispensary on charitable basis and the shop in question is required for providing extended medical facilities. Thus keeping in view the purpose for which eviction has been sought, it is clear that the petitioner impliedly claimed itself to be a public institution and the eviction has been sought for furtherance of its activities.
10. A public institution is primarily a social concept. It may be established by forming an organization which may assume any or no legal form. It may be a trust or a company or a statutory corporation or a mere unincorporated association or a society registered or otherwise. When it is opined that the petitioner has filed the present eviction petition by impliedly claiming itself to be a public institution, in my considered opinion, there is no need for the petitioner to prove that it is a registered society since a trust may be an unregistered society or an unincorporated organization. As regards its aims and objects, the same are also not necessarily required to be proved through a registered instrument and it can be proved by oral evidence as well.
11. Now the crucial question is whether the petitioner is a public institution within the meaning of Section 22 of the Act or not. The E. No. : 663/06 Page No. 5 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh said Section is reproduced as under:
"Section 22. 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 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 -
(a) .......
(b) .......
(c) .......
(d) that the premises are required bona fide 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 but does any include any such institution set up by any private trust."
12. It is held by various Superior Courts that the explanation appended to Section 22 is only illustrative and not exhaustive and it does not purport to define a public institution at all. It is however true that the instances given in the explanation refer to commonly accepted charitable objects. Here it is appropriate to take assistance of the E. No. : 663/06 Page No. 6 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh definition of 'charitable purpose' as provided in Section 2(15) of the Income Tax Act, 1961 which reads as under:
"Charitable purpose' includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit".
13. In the book titled as "Law of Rent Control in Delhi, Rameshwar Dial and Adarsh B. Dial, 3rd Edition" the word 'charity' has been elucidated as - "A gift to be applied consistently with the existing laws, for the benefit of an indefinite number of persons by providing them education or religion, by relieving their bodies from suffering, disease or constraint, by assisting them to establish themselves for life, or by creating or maintaining public buildings or works or otherwise lessening the burdens of the government. The charity is active goodness i.e. doing good to our fellow men, fostering those institutions that are established to relieve pain, to prevent suffering and to do good to mankind in general or to any class or portion of mankind".
14. By the Amendment of 1988, the explanation of Section 22 of the Act has been amended to make it exclusionary also. A public institution set-up by a private trust can not now invoke Section 22 of the Act. The distinction between a private and a public trust is that in E. No. : 663/06 Page No. 7 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh the former, the beneficiaries are defined and ascertained individuals while in the latter, the beneficial interest vests in an uncertain and fluctuating body of persons. Feeding the poor, endowment to Dharmasala, dedication for purpose of Math where anybody was at liberty to go at any time to take food, etc. are public trusts. But if each member of the family gets his share of profit from the trust property or if trust is only to preserve worship of settler's own deity and members of public have no right to worship in the temple, it is a private trust.
15. Keeping in view the aforesaid guiding factors, I hold that the petitioner is a 'public institution' within the meaning of Section 22 of the Act on following counts:
(i) The petitioner is a Gurudwara which is open to all public (the same has been admitted by respondent in his cross-
examination) and as such the said Gurudwara/society cannot be said to be a private institution.
(ii) The respondent also admitted in the written statement that the petitioner used to perform religious activities of a Gurudwara and that it also used to offer langar to the general public.
(iii)The petitioner also specifically pleaded in the petition that it E. No. : 663/06 Page No. 8 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh is running a dispensary with the help of some doctors in the premises of the Gurudwara. The respondent did not deny the running status of said dispensary and even in the site plan filed by the respondent on record, a dispensary has been shown to be in existence at ground floor. Even in the cross-examination, the respondent also admitted existence of a dispensary. From the aforesaid facts, it is clear that the petitioner is running a dispensary in the premises in question for general public.
(iv)The petitioner specifically claimed that the medical services are being given from the said existing dispensary on free- of-cost basis. There is no specific denial in the written statement about providing of such service on free of cost basis. Even the respondent has not brought on record any evidence to show that the said dispensary is a private one and charging the amount which are prevalent in market.
(v) The counsel for the petitioner relied on the case of Jagdish Chandra Lekha Vs. All India Blind Relief Society (Regd.), C. M. (M) No. 900/2014 and C.M. No. 16352/2014 (stay) dated 29.09.2014 and argued that the facts of the said case squarely apply to the present case in which an eviction order was passed in similar E. No. : 663/06 Page No. 9 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh circumstances. In that case, the facts are that the respondent/ landlord was an All India Blind Relief Society, a society registered under the Societies Registration Act, 1860 and it filed a bona fide necessity eviction petition under Section 22 of the Delhi Rent Control Act, 1958 against the petitioner/tenant pleading that it is running a charitable hospital under the name of Model Eye Hospital and it requires the tenanted premises for the purpose of carrying on its various activities as there is a grave shortage with the respondent/society for rooms for a pathological lab, ENT Department, Ayurvedic Department, waiting room etc. After considering the arguments, the Court held, "the bare provision of Section 22 of the DRC Act provides that if the landlord is a public institution and the premises are required for the use of employees or for the furtherance of the activities of the public institution then notwithstanding the provision of Section 14, the landlord may be placed in vacant possession by eviction of the tenant. Further clause (d) of Section 22 provides that the same can be done if the premises are required bona fide by the public institution for the furtherance of its activities. In the explanation clause, the provision clearly mentions that public institution includes hospitals. Applying the same to the present case, it can be clearly observed that the E. No. : 663/06 Page No. 10 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh petitioner is running an Eye Hospital at the suit premises for the public welfare as a charitable institution. This has not been denied or disputed by the respondent. The petitioner has claimed bona fide requirement of the premises in furtherance of the activities and has also enlisted the details of the rooms required and for what purpose. In light of the pleadings of the petitioner as well as the evidence adduced, it can be noted that the petitioner is in requirement of accommodation so as to proliferate the cause of public welfare in treating the ailments of the patients visiting the hospital."
16. In the light of above said facts, I hold that the petitioner/Gurudwara is a public institution within the definition of the Section 22 of the Act.
Organized activity
17. It is contended by the learned counsel for the respondent that a society merely by having one of its objects as opening dispensary and hospital does not assume the character of a 'public institution'. A 'public institution' is one which carries on an organized activity. Thus, it is stressed that an organized activity is a sine qua non of a 'public institution'. The counsel further added that in Corpus Juris Vol. 32, Page 943, note 7, "public institution" has been defined as an E. No. : 663/06 Page No. 11 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh organized activity created or established by law or public authority.
18. The learned counsel for the respondent further asserted that in the present case, there is dearth of evidence showing the organized activity of dispensary being undertaken by the petitioner. No particulars about the doctors, even their names or any record pertaining to any salary paid to them or pertaining to any other expenses ever made by the petitioner on the medicines or for running the dispensary have been placed on record to support the claim that more than 200 patients are daily visiting the dispensary. He argued that the petitioner has failed to prove that an organized activity of dispensary is being undertaken by it.
19. No doubt the petitioner has failed to prove the fact that there are three doctors in working and around 200 patients visit on daily basis to the homeopathy dispensary but from the evidence produced on record and especially the admission of the respondent in the written statement and the cross-examination, it came on record that there is a dispensary in existence, a few doctors especially Doctor Thapa was rendering his services in the past and a few patients (though the number of patients are less) used to come. From the aforesaid facts, it is evident that the aforesaid dispensary (homeopathy) is an organised activity, maybe not of a large scale or maybe the number of doctors or patients are less, but by that fact it cannot be said to be an unorganized E. No. : 663/06 Page No. 12 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh foreign activity unconnected with the functions of Gurudwara. Thus I hold that the said argument is without any force.
New activity
20. In 1982 (21) DLT 174, the Hon'ble Delhi High Court held that the requirement of the public institution must be in furtherance of its object and it should not be to start a new activity. In the said case, the plea of the landlord was that it wanted to start a public library, charitable dispensary and Satsang Bhavan in the premises. It was admitted that there was no such library, dispensary and Satsang Bhavan existing in any part of the suit premises. It was held that the Section 22 requires that the eviction can be claimed by the landlord i.e. a public institution for the furtherance of its activities and not for starting new activities in the premises. The facts of the aforesaid case are distinguishable to the facts of the present case since in the instance case, it is already on record that there is a running dispensary at the ground floor of the premises. The said dispensary has even been shown in the site plan by the respondent. Accordingly, I hold that no further discussion is required on the aforesaid aspect since the petitioner is already running a dispensary and it is not seeking eviction for starting a new activity. The expansion of medical facilities in the field of allopathic treatment and opening of diagnostic labs cannot be said to be new activity but rather they are complimentary or supplementary.
E. No. : 663/06 Page No. 13 of 20Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh (2) Bona fide requirement of the petitioner
21. The learned counsel for the respondent cited the discussion on the meaning of word 'bona fide' as discussed in 1999(6) SCC 222 by Hon'ble Supreme Court as follows:
"Chambers 20th Century Dictionary defines bona fide to mean 'in good faith : genuine'. The word 'genuine' means 'natural': not spurious: real; pure : sincere'. In Law Dictionary, Mozley and Whitley define bona fide to mean 'good faith', without fraud or deceit'. Thus 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 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.
22. The counsel for respondent argued that the petitioner has not placed on record any patient record register or prescription slip or any other documentary evidence and there is no bona fide requirement. From the evidence produced on record, it is clear that the petitioner has not specifically proved the number of patients who visit the existing E. No. : 663/06 Page No. 14 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh dispensary on an average but by that very fact, it cannot be said that the need of the petitioner to extend and expand the scope of dispensary is mala fide.
23. In the petition, it is mentioned that great difficulties are being felt by the doctors, patients and the dispensary staff on account of small space of room i.e. 15 X 11 ft. The petitioner also stated to have a plan to run a allopathic dispensary but it is alleged that due to lack of accommodation it is unable to do so.
24. In my considered opinion, in order to decide the bona fide requirement, this court is not only to see the past working style of the petitioner but also the ancillary projected needs/requirements as claimed by the petitioner. In the instance case, the petitioner claimed bona fide requirement of shop in question alongwith 07 other shops for expansion of dispensary to the allopathic branch by claiming that 8 shops will be utilized as under:
(i) Three shops will be used for homeopathic and allopathic dispensaries
(ii) Three shops will be used for attending the patients by three doctors in separate rooms;
(iii) Two shops will be used for running an allopathic dispensary
(iv) One shop will be used for attending female patients by lady E. No. : 663/06 Page No. 15 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh doctor.
(v) One room will be used for storing medicine and other stores connected with running of dispensaries.
(vi) One shop will be used for waiting room for the patients.
25. From the aforesaid projection of utilization of shops/rooms, it is clear that the number of rooms/shops were not specifically stated to the extent of exact 8 numbers but from the nature of requirement, it is clear that it is the discretion of the landlord to modify or adjust the available accommodation in any manner for fulfilling the main objectives of running allopathic and homeopathic dispensaries and paraphernalia activities.
26. It is a well settled preposition of law that neither this court nor the tenant can impose its own wisdom on the choice of a landlord to seek eviction for a particular place.
27. On perusal of the aforesaid requirements of the petitioner, I hold that petitioner being a Gurudwara has every right to expand its activities for the welfare of the general public and that too for charitable purposes by providing the medical facilities in the field of allopathic and homeopathic treatment and the said requirement cannot be said, from any stretch of imagination, mala fide or unreasonable.
E. No. : 663/06 Page No. 16 of 20Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh
28. The learned counsel for the respondent argued that the present eviction petition along with other petitions have been filed when the petitioner failed to get the premises vacated by issuing false notice giving threat of demolition by the MCD. It is thus claimed by the respondent that the petitioner has initiated action against all the eight tenants together to get rid of them and the projected requirement of expanding the dispensary is sham and illusory. In the replication, the petitioner gave specific explanation about issuance of notice for vacation of shop on account of charging commercial house tax by the MCD for running shops in the premises of Gurudwara. The said notice is dated 04.07.2005 and the present eviction petition has been filed on 02.08.2006 that means, the requirement of the Gurudwara for bona fide requirement arose or felt after more than one year of the said notice and it cannot be related to it without concrete evidence. Even otherwise, the bona fide requirement of a Gurudwara or public institution can arise whenever its management finds it genuine keeping in view the need of its devotees or public at large.
(3) Existence of alternative suitable accommodation
29. The counsel for the respondent vehemently argued that the petitioner is not only required to prove that it requires shop in question for furtherance of its activities but that the said requirement is bona fide within the meaning of Section 22 (d) of the Act. He further asserted that E. No. : 663/06 Page No. 17 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh although there is no clause as given in Section 14(1)(e) of the DRC Act to show that there is no alternative suitable accommodation available with the petitioner but the term "Bona fide requirement" itself includes the factum that the petitioner has no other alternative accommodation to further its activities. The counsel for the respondent pointed out that the petitioner is already having ample space at the basement, ground floor, first floor and second floor as disclosed by the respondent in his cross-examination as well as two rooms at point B & C at ground floor.
30. The petitioner has placed on record a site plan of the ground floor of the said Gurudwara which is Ex. PW1/A. The respondent has also placed on record a site plan (Ex. RW1/2) of the entire premises which shows basement, ground floor, first floor and second floor. The shop in question is situated at the ground floor. A dispensary has been shown to be situated at the ground floor at the same place as shown in the site plan filed by both the parties.
31. From the said admitted facts about already running status of a dispensary at the ground floor, I am of the opinion that the petitioner has every right to choose a place keeping in view the proposed activity. When a dispensary is already running at the ground floor, the other peripheral activities like creation of more space for allopathic treatment, providing rooms for doctors, patients, diagnostic facilities, etc., the ground floor will be the most suitable especially E. No. : 663/06 Page No. 18 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh for disabled or infirm patients.
32. Landlord has complete discretion and freedom to choose the nature and place of business. In such cases, courts are not required to see as to whether proposed business would earn him profit or not. In the judgment titled as "Ragavendra Kumar v. Firm Prem Machinary reported as AIR 2000 SUPREME COURT 534", the Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reference may also be made to the judgment titled as "Prativa Devi (Smt) v. T.V. Krishnan reported as (1996) 5 SCC 353".
33. In this regard, I also rely on the case of Uday Shankar Upadhayay & Ors. vs. Naveen Maheshwari [(2010 1 SCC 503)] wherein it was held as under:
"In our opinion, once it is not disputed that the landlord is in bona fide need of the premises, it is not for the courts to say that he should shift to the first floor or any higher floor. The court cannot dictate to the landlord which floor he should use for his business; that is for the landlord himself to decide."
Conclusion
34. In the light of aforesaid findings, I hold that the petitioner succeeded in proving its case under Section 22 of the Act. Resultantly, E. No. : 663/06 Page No. 19 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh the petition is allowed and the respondent is directed to handover the vacant physical possession of the shop in question as shown in red colour in the site plan Ex. PW1/A to the petitioner within 30 days. File be consigned to record room.
Announced in the open court on 08.07.2015 (Naresh Kumar Laka) Senior Civil Judge-cum-Rent Controller Shahdara District, Karkardooma Courts, Delhi E. No. : 663/06 Page No. 20 of 20 Gurudwara Sri Guru Singh Sabha vs. S. Darshan Singh