Delhi High Court
V.R. Panikar vs Lt. Col. A.K. Behal on 2 December, 1998
Equivalent citations: 1999IAD(DELHI)636, 77(1999)DLT317, 1999(48)DRJ16
ORDER C.M. Nayar, J.
1. The present petition is directed against the judgment dated August 25, 1998 passed by the Additional Rent Controller, Delhi.
2. The respondent filed a petition against the petitioner for eviction from the ground floor of House No.87, Uday Park, New Delhi under the provisions of Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act (hereinafter referred to as 'the Act'). The premises were originally let out to Shri S. Krishnan Nayyar in January, 1976 and the terms and conditions were incorporated in the lease-deed dated April 29, 1976. After his demise in October/November, 1985 the premises were occupied by his sister Mrs.J.R.Pannikar and after her death in August/September, 1986 her son who is the present petitioner has been living as a tenant in the premises. The respondent claimed that the premises were let out for residential purposes and are now required bona fide by him for residence of himself and his dependent family members. He has no other sonably suitable residential accommodation and is, therefore, entitled to an order of eviction.
3. The respondent is an Army personnel presently posted at Ahmedabad butis subject to frequent transfer every 2-3 years. His family consists of his wife, two children, son and daughter and his old and ailing mother Smt.Raj Behl. It is also alleged that the mother of the respondent had undergone open heart surgery in Jaslok Hospital, Bombay and she has also been operated for breast cancer in Mool Chand Hospital and she is not fully cured and has to come for check up regularly. Therefore,it is contended that it isnecessary for her to stay in Delhi to avail of medical facilities which are available and it is very expensive and difficult to escort her for the saidtreatment to Delhi.The learned Additional Rent Controller assessed the requirement and need of the respondent and granted a decree of evictionagainst the petitioner and dismissed the application seeking leave to contest.
4. The learned counsel for the petitioner has vehemently argued that the facts as pleaded by the respondent are required to be confirmed and corrob-orated and, therefore, in pursuance to the provisions of sub-clause (5) of Section 25B of the Act leave to contest has to be granted in the facts and circumstances of the present case. This provision may be reproduced as under:
"25B(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A."
5. Reliance is made on the judgments of the Supreme Court reported as Ram Das Vs. Ishwar Chander and others ; Baba Kashinath Bhinge Vs. Samast Lingayat Gavali and others ; S.J. Ebenezer Vs. Velayudhan and others and Rahabhar Productions Pvt. Ltd. Vs. Rajendra K. Tandon .
6. The concept of bona fide requirement has been explained in the judgment reported as Ram Dass (supra) in paragraph 11 which has been referred to by learned counsel for the petitioner. The same reads as follows:
"Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bona fide requirement of the landlord, variously described in the statutes as "Bona fide requirement", "reasonable requirement", "bona fide and reasonable requirement" or, as in the case of the present statute, merely referred to as "landlord requires for his own use". But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlord's desire for possession however honest it might otherwise be, has inevitably a subjective element in it and that, that desire, to become a `requirement' in law must have the objective element of a "need". It must also be such that the court considers it reasonable and, therefore, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down."
The scope of revisional power of this Court is elucidated in paragraph 12 which may also be referred to as below:
"12. On the first contention that the revisional powers do not extend to interference with and upsetting of findings of fact,it needs to be observed that, subject to the well known limitations inherent in all revisional jurisdictions, the matter essentially turns on the language of the statute investing the jurisdiction.The decisions relied upon by Shri Harbans Lal, deal, in the first case, with the limitations on the scope of interference with findings of fact in second appeals and in the second, with the limitation on the revisional powers where the words in the statute limit it to the examination whether or not the order under revision is "according to law". The scope of the revisionalpowers of the High Court, where the High Court is required to be satisfied that the decision is "according to law" is consideredby Beaumont,C.J. in Bell & Co. Ltd. Vs. Waman Hemraj a case referred to with approval by this Court in Hari Shankar Vs.Girdhari Lal Chowdhury."
7. It is next submitted from the judgment reported as Baba Kashinath Bhinge (supra) to reiterate the proposition that burden is always on the landlord to prove his bona fide and in case of any such plea which has been raised in the present case, the Court must grant leave to contest. Paragraph 5 of the judgment as referred to above is reproduced as under:
"A reading thereof would establish that the landlord including the public trust have to satisfy the court that the landlord reasonably and bona fide requires for occupation by himself or any person for whose benefit the premises held is a public charitable trust, it requires the premises for the purpose of the trust. Burden is always on the landlord/public trust to prove its bona fides. Sub-section (2) gives discretion to the court and directs that no decree for eviction should be passed under clause (g) of sub-section (1), if the court is satisfied that having regard to the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused to the tenant by passing the decree then it may refuse to pass a decree for eviction. In exercising the discretion in the facts and circumstances in a given case, the court is enjoined to consider whether reasonable accommodation is available either to the landlord or to the tenant and in the event that a decree foreviction is passed,who would suffer greater hardship is also to be kept in view. It is one of relative hardship to either land-lord or tenant. If hardship is greater to the tenant, the court may decline to pass a decree for eviction. Second part of sub- section (2) visualises that where the court is satisfied that no hardship would be caused either to the landlord or to the tenant by passing a decree for partial eviction, then court may pass such a partial decree. Here the court is enjoined to consider only relative hardship and if the court is satisfied that no hardship would be caused either to the landlord or the tenant in passing a decree for partial eviction then the court should suitably modulate and pass an appropriate partial decree in thatbehalf...."
8. The concept of bona fide requirement is briefly stated in paragraph 27 of the judgment as reported in Rahabhar Production (supra) and it has been held as follows:
"27. Integrating these two factors together, namely, the right of the landlord to recover immediate possession and the right available to a tenant to raise pleas in defense to indicate that the premises, in spite of retirement or likely retirement of the landlord, are not required by him, what emerges out is that while the landlord has to establish his "requirement", which means 'real" and not "feigned", the tenant can show that it is not so."
9. Paragraph 10 from the judgment S.J.Ebenezer (supra) has also been referred to highlight the proposition that while considering the question of bona fides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. This paragraph may also be referred to as below:
"After coming to that conclusion and finding that the schedule building was the only building exclusively belonging to the landlord, the Appellate Authority found that the requirement was bona fide. The Appellate Authority on the other aspect, namely, the acquisition by the Town Planning Authority took note of the fact that the authorities concerned have issued the declaration under Section 6 of the Land Acquisition Act and thereby expressed their final decision to proceed with the acquisition. Therefore, there was necessity for the landlord to seek eviction of the appellant from the schedule building. The contention advanced on behalf of the tenant that there was no probability of the authorities proceeding with the acquisition was not accepted by the Appellate Authority. It was also the view of the Appellate Authority that in rent control proceedings the pleadings need not be as elaborate as in normal civil suits. The pleading that he required the schedule premises for his own residence and for other affairs is sufficient on the facts of this case. On these findings, the Appellate Authority reversed the order of the Rent Controller and ordered eviction of the tenant. While considering the question of bona fide, what is necessary to bear in mind isthat mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. The burden also lies upon the landlord to establish that he genuinely requires the accommodation for the purpose of starting or continuing his own business (vide Mattulal Vs. Radhe Lal). The Appellate Authority has not followed the above test before giving the finding on the question of bona fide need of the landlord."
10. The law as stated above may now be applied to the facts of the present case. The petitioner is an Army Officer who is presently posted in Ahmedabad. The learned counsel for the respondent has stated that he is due to retire on July 21, 2000. The family of the petitioner comprises of his wife, two children, one son and one daughter and his old ailing mother which, as has been stated above suffers from heart problem as well as from breast cancer. The petitioner himself lost his leg in 1971 War and suffered 60 per cent disability as was stated in the medical certificate issued by Command Hospital, Pune. Similarly, the mother of the petitioner was operated upon in Mool Chand Hospital as well as for heart problem in Jaslok Hospital, Bombay. These facts are borne out from records which were placed before the Additional Rent Controller. The suitability of the present accommodation which is based on the ground floor was assessed by the learned Additional Rent Controller and he considered the broad facts which were placed before him and arrived at the conclusion in the following paragraphs of the judgment which read as under:
"Respondent had claimed that petitioner did not require the premises. He had claimed that mother of the petitioner had not been suffering from breast cancer and even if she was suffering she has been cured completely. He had further claimed that there were good hospitals in Ahmedabad which is an advanced city. He had further claimed that petitioner had first floor of house No.8/33 South Patel Nagar and also second floor of the premises in dispute, available. Learned counsel for respondent had under-taken to file documents regarding the house in South Patel Nagar. He did not file a single document. Even if we assume that the first floor of the house No.8/33 South Patel Nagar and second floor were available to petitioner we have to see whether the said premises are suitable alternative accommodation available. Copies of various medical certificates regarding the health of petitioner and the mother of the petitioner were filed. As per one of them petitioner himself lost his leg in 1971 war. He suffered 60% disability. There was no reason to disbelieve the medical certificate issued by Command Hospital, Pune.There is also a certificate issued by Artificial Limb Centre Pune which gives out his disability as 60%. There is another medical certificate in record which shows that mother of petitioner suffers from Breast cancer. She was also operated upon in Mool Chand Hospital, Delhi. Record of Jaslok Hospital indicates that she is also having heart trouble. She is an aged lady. Certainly premises on the second floor in the house in dispute cannot be considered as suitable alternative accommodation either for mother of the petitioner or petitioner himself, who had lost a leg while defending our country. Similarly even if house is available at South Patel Nagar, the same is at first floor. It cannot be treated as a suitable alternative accommodation. It is certainly not for the tenant to advise the landlord as to which hospital he has to consult. He has no business to tell the landlord that the medical facility are available at Ahmedabad. Since mother of petitioner was operated upon in Delhi for breast cancer, she cannot be told to consult the doctors at Ahmedabad. It is for the patient to consult the doctor of his choice. Tenant cannot be allowed to sit in judgment over various medical reports. He cannot be allowed to say that cancer patients does not require edical treatment after one year of operation. If such frivolous pleas of tenant are permitted then it would mean that tenant is more competent than the panel of doctors who are treating the patient.
Petitioner himself has lost his leg. So, certainly premises onfirst floor or second floor are not suitable for him. Similarly his mother, who is not only having heart problem but also is a cancer patient and is old lady cannot be told to climb upstairs, leading to first floor or second floor as alleged by the tenant. The medical documents indicates that mother of the petitioner consults doctors at Delhi. She is required to travel frequently to Delhi. So it cannot be said that desire of the petitioner to occupy the premises in dispute is fanciful or unjust.
Petitioner is a senior army officer. He keeps on getting transferred from one place to another. His sons and daughter also are living nomadic life with him. So certainly it would be in theirinterest if they settle down permanently in their own residence and study uninterruptedly."
11. In view of the above facts can it be said that the desire of the respondent to shift his family to the tenanted accommodation is fake and fanciful? The bona fide requirement in the above background cannot be assessed to be unreasonable from the point of view of the settled position of law relating to that question. The judgments which have already been referred to do not lay down further rigours to stand in the way of granting an eviction order in case the circumstances so warranted as is quite obvious in the facts of the present case.
12. The Supreme Court in the judgment reported as Prativa Devi (Smt) Vs. T.V. Krishnan has categorically held that the landlord is the best judge of his residential requirement and he has the complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
13. In the recent judgment of the Supreme Court reported as Sarla Ahuja Vs. United India Insurance Co. Ltd. 76 (1998) Delhi Law Times 1 the Court elaborately considered the requirement of the landlord to determine the factors which will term it as bona fide and genuine. In that case a widow wanted to shift her residence from Calcutta to Delhi to occupy her own building which was in the possession of her tenant. She got an order of eviction from the Rent Controller under Section 14(1)(e) of the Act. But the learned Judge of this Court non-suited her by reversing the order on the ground that her husband who was to shift to Delhi along with her had meanwhile expired and ,therefore, her requirement ceased to exist. bona fide. The Court examined the facts of the case and reversed the judgment of this Court by returning the following conclusions:
13. If the landlord has another residential accommodation which is reasonably suitable, he is not permitted to avail himself of the benefit afforded in the grounds set out in the clause. Learned Single Judge of the High Court has noted that the land-lord in this case has "admitted in her deposition that the house in Calcutta was a 3-bedroom house with drawing/dining room and one of the bedrooms was used by her and other by her son with his wife, and another bedroom was kept for her daughter who use to come and stay". This was one of the reasons which persuaded the learned Single Judge to interfere with the order of eviction. To deprive the landlord of the benefit of the ground mentioned in Section 14(1)(e) on account of availibity of alternative residential accommodation it is not enough that such alternative accommodation is in a far different State. Such accommodation must be available in the same city or town, or at least within reasonable proximity thereof if it is outside the limits of the city. The said limb of Clause (e) cannot be interpreted as to mean that if landlord has another house anywhere in the world he cannot seek recovery of possession of his building under Clause (e). High Court therefore went wrong in observing that since the landlord has possession of another flat at Calcutta she is disentitled to seek recovery of possession of the tenanted premises situated at Delhi.
14. The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself with-out getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
14. The present case will illustrate the broad facts that the respondent land-lord is an Army Officer who is based in Ahmedabad with a short service left to his credit. He has two young children as well as old and ailing mother and the desire to keep his family in his own house in Delhi has been assessed to be bona fide and it has been correctly held that it will be in the interest of the family in case they settle down permanently in their own residence. The illness of the mother of the respondent who is dependent upon him has been clearly and categorically supported by medical certificates and for such purpose no further evidence is required. Leave to contest in such circumstances is not necessary to be granted and the same has been rightly declined by the learned Additional Rent Controller.
15. The learned counsel for the petitioner has also made a faint attempt to argue that the premises were let out for composite tenancy of commercial as well as residential purposes. Reliance is placed on the judgment of the Supreme Court in Smt. A.N. Kapoor Vs. Smt.Pushpa Talwar .
The Rent Controller has rejected this argument as no evidence was placed on record to indicate that the premises were being used for the composite purposes. The property is situated in a residential area and even otherwise the mere incidental user of office even assuming it is accepted cannot convert the premises into residential-cum-commercial. This argument also has no force and is rejected.
In view of the aforesaid reasons, the present petition is devoid of merit and is, accordingly, dismissed in limine.