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Delhi District Court

Smt. Shanti Devi vs Sh. Mahesh Kumar Sharma on 25 January, 2011

 IN THE COURT OF MS. VRINDA KUMARI, ARC (NE), COURT
      ROOM NO. 53, KARKARDOOMA COURTS, DELHI.


E­293/09
Unique Case  ID No. 02402C0365762009


IN THE MATTER  OF:­

SMT. SHANTI DEVI
W/O SH. HARISH CHAND,
R/O A­64, GOKALPURI
DELHI­110094                                               ........PETITIONER

                         VERSUS
SH. MAHESH KUMAR SHARMA
S/O LATE SH. L. D. SHARMA,
R/O D­3/44, DAYALPUR
DELHI­110094

ALSO AT

ROYAL DENTAL CLINIC,
SHOP ON THE GROUND FLOOR,
IN PROPERTY NO. A­64,
SKOKAL PURI, DELHI­94                                       .........RESPONDENT


ORDER

1. Vide this order, I shall dispose of the respondent's application for grant of leave to defend the eviction petition u/S 14(1) (e) Petition no. E­293/09 Page 1/9 of the Delhi Rent Control Act, 1958.

2. Briefly stated, the case of the petitioner is that the original allottee of property no. A­64, Gokal puri, Delhi­94 had executed a GPA in favour of the husband of the petitioner in respect of this property. Thereafter, the husband of the petitioner executed a GPA in respect of this property in favour of the petitioner. The petitioner claims to be the owner / landlady of the tenanted property, that is, one shop in property no. A­64, Gokal puri, Delhi­94 on this basis. The respondent was inducted as a tenant in the suit shop by the husband of the petitioner about 22 years back. The rate of rent is Rs. 300/­ per month. The case of the petitioner is that her husband was working as a peon at NCC, Mall Road, Civil Line, New Delhi. After his death, she got the job on compassionate ground and is earning a meager salary which is not sufficient for survival of herself and her children. The petitioner has 4 children. Two elder sons are unemployed whereas the younger son and daughter are still studying. The daughter of the petitioner is of marriageable age. It is submitted that her two elder sons, being unemployed, want to run their business in the tenanted shop. She also submits that the rest of the property no. A­64 is a residential in nature. The room on the ground floor that is adjacent to the suit shop is being used as a store by the petitioner. On the above said ground of bonafide requirement, the petitioner has sought an eviction order against the Petition no. E­293/09 Page 2/9 respondent in respect of the suit shop on the ground floor forming part of property no. A­64, Gokal puri, Delhi as shown in red in the site plan.

3. In his application for grant of leave to defend the petition, the respondent has controverted the averments of the petitioner. It is submitted that the suit property is situated in a JJ Colony which falls under the Jhuggi Jhonpri Removal Scheme of DDA / Government. Under this scheme licenses were granted to the Jhuggi dwellers. It is the Government, therefore, who is the owner and the allottees are mere licensees who are depositing the license fee @ Rs. 8 per month. It is submitted that DDA had granted license under the above said scheme to one Sh. Dalip Singh who has been depositing the license fee with DDA / Government from time to time. It is alleged that the petitioner is an illegal occupant. It is also averred that since the property in question belongs to DDA / Government, the applicability of the DRC Act is barred u/S 3 of the DRC Act. The contention of the petitioner is also that there is another vacant shop adjacent to the tenanted suit shop. Earlier it was in possession of a photographer and was got vacated by the petitioner about 4 years ago. It is the admitted case of the petitioner that it is being used for storing goods. It is averred that the suit shop being used by the petitioner for storing goods can be used by the petitioner for running the business of his sons. It is further alleged that the supply of the electricity in the suit premises has been deliberately withheld by the Petition no. E­293/09 Page 3/9 petitioner. On this ground, the respondent has sought leave to defend the present eviction petition.

4. In her reply to the application for grant of leave to defend the eviction petition, the petitioner has denied and controverted the averments of the respondent. In her reply she has also stated that apart from the children mentioned in the petition, she has three married daughters also who come to visit her with their family. She also submits that she, her younger daughter, three sons are living in one small room over the tenanted shop. Therefore, she uses the room adjoining the suit shop as store to make place in the one room above the suit shop. She has further averred that she and her elder son would be using the shop in question for small business in day time and use for sleeping at night.

5. I have heard the arguments on behalf of both the parties on the application for grant of leave to defend on 15.01.2011. I have perused the records carefully.

6. The petitioner has explained that there is one room above the shop which is being used for residential purpose and to make sufficient space for her entire family, she has to use the room adjoining the suit shop for storage purpose. That room has been shown as shop in the site plan of the petitioner. The respondent has not disputed that this adjoining room shown as shop in the site plan is in fact being used for storage purpose by the petitioner. The landlord ­tenant relationship between the Petition no. E­293/09 Page 4/9 parties is not disputed and a tenant cannot dictate his landlady as to how she should utilise her property. In such a situation the respondent cannot dictate terms to the petitioner regarding the usage of the room adjacent to the suit shop. Since the petitioner is using the same for storage purpose keeping in view the requirements of her large family, the respondent cannot take the defence that this room/store can be used as a shop by the petitioner.

7. The contention of the respondent is that one son of the petitioner is gainfully employed with TDI Mall, near Natraj Cinema, Moti Nagar, New Delhi and the other two sons are students who do not need the suit shop. No material has been brought on record in favour of these assertions by the respondent. It is not disputed that petitioner is a widow and has a large family. It is also not disputed that the petitioner is working as a peon. In these circumstances, the requirement of the tenanted shop of the petitioner to enhance the family income and for adjusting her two elder sons accordingly in the shop is a bonafide requirement. It has been held in Sarwan Dass Bange V/s. Ram Prakash 2010 IV AD (Delhi) 252 ­ "... A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine." It has been further reiterated that a heavy burden lies on the tenant to prove that the requirement of the petitioner is not Petition no. E­293/09 Page 5/9 genuine.

8. It has been argued on behalf of the respondent that since the DRC Act has not been amended pursuant to the latest judgment of Hon'ble Supreme Court of India in respect of commercial tenancy (Satyawati Sharma (dead) by LRs Vs Union of India and Anr., III (2008) SLT 553), an eviction order in respect of commercial premises u/S 14 (1)

(e) of the DRC Act cannot be made. He has further argued that the said judgment of Hon'ble Supreme Court of India is under challenge before the larger Bench of Supreme Court of India and therefore, petitioner cannot avail benefit of judgment in Satyawati's case. The court does not find any merit in this argument of Ld. counsel for the respondent. The judgment of Hon'ble Supreme Court of India in the Satyawati's case is still in force and therefore, the DRC Act is applicable to the commercial premises also. In Tagore Education Society Regd. Vs. Kamla Tandon & Anr., 2009 (2) RCR 188 of Hon'ble High Court of Delhi it has been held ­ " In view of the aforesaid observations of Supreme Court, in my opinion the ambit of Section 14 (1) (e) of the DRC Act has been enlarged and a landlord is entitled to an eviction order even with regard to commercial tenancy, if landlord is able to show that he/she requires the premises bonafide for his own or for his family members need irrespective of the fact as to whether the need is for commercial or residential purpose...". Thus, Section 14 (1) (e) of the DRC Act extends Petition no. E­293/09 Page 6/9 to commercial premises as well.

9. The petitioner has filed certain receipts issued by DDA (Jhuggi Jhonpari Removal Scheme) to show that initially the plot no. A­ 64 was alloted to Sh. Dalip Singh on a license fee of Rs. 8 per month. Thereafter, Sh. Dalip Singh executed GPA (Mukhtyarnama), Agreement (Ikrarnama), and affidavit all dated 24.03.1976 in favour of Sh. Harish Chandra in respect of the property no. A­64. Sh. Harish Chandra thereafter executed agreement to gift this property in favour of his wife Smt. Shanti Devi (petitioner) on 16.03.1994 along with GPA and Deed of Will both dated 16.03.1994. It has been argued on behalf of the respondent that even if the sale documents of Sh. Dalip Singh, the original allottee are to be believed, the status of the petitioner at best would be that of a licensee who is not covered under the proviso of Section 3 (b) of the DRC Act. Proviso of Section 3 (b) of the DRC Act provides that where any premises belonging to Government have been or are lawfully held by any person by virtue of an agreement with the Government or otherwise, then, notwithstanding any judgment, decree or order of any court or other authority, the provisions of the Act shall apply to such tenancy. Ld. counsel for the respondent has argued that grant of a license by Government is not same as execution of a lease by it in favour of a person. For this purpose, a careful perusal of the objectives of The Slum Areas (Improvement and Clearance) Act, 1956 along with Petition no. E­293/09 Page 7/9 its provisions is required. As per the scheme for relocation of JJ Clusters, eligible Jhuggi families were alloted plots on license fee of Rs. 8 per month. Section 2 (g) of the Slum Areas (Improvement and Clearance) Act, 1956 defines owner as follows ­ " owner includes any person who is receiving or is entitled to receive the rent of any building or land whether on his own account or on behalf of himself and others or as agent or trustee, or who would so receive the rent or be entitled to receive it if the building or land were let to a tenant". By this definition, the petitioner is the owner of property bearing no. A­64, Gokalpuri, Delhi­94. As has been observed above the landlord ­tenant relationship between the parties is not disputed. The petitioner has definitely established that she has a better title in the tenanted premises than the respondent. Absolute ownership is not required to be proved in the present petition. In the above said circumstances, where the plot no. A­ 64 was alloted to the original allottee, Sh. Dalip Singh, who further transferred the allotment to Sh. Harish Chandra, husband of the petitioner and Sh. Harish Chandra gifted the same to the present petitioner, it cannot be said that for the purpose of Section 14 (1) (e) of the DRC Act, it is the Government / DDA who is the owner of the tenanted premises or that the present case does not fall under the proviso to Section 3 (b) of the DRC Act. As has been discussed above, the Slums Act itself provides the definition of owner by which the petitioner falls in the category of Petition no. E­293/09 Page 8/9 owner of the tenanted premises, even though she is required to pay a license fee of Rs. 8 per month.

10. In view of above discussion, the court is convinced that the respondent has failed to disclose any such fact as would disentitle the landlady from obtaining an order for the recovery of possession of the tenanted suit premises on the ground of bonafide requirement as specified in Section 14 (1) (e) of the DRC Act. The application for grant of leave to defend is, therefore, dismissed. The petitioner is entitled to an eviction order.

10. An eviction order is passed in favour of the petitioner and against the respondent in respect of the tenanted premises, that is, one shop in property no. A­64, Gokal Puri, Delhi­94, as shown in red colour in the site plan of the petitioner. This order is subject to Section 14 (7) of the DRC Act.

11. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT OF THIS TWENTY FIFTH DAY OF JANUARY 2011.

(VRINDA KUMARI) ARC (NE) KKD, DELHI.

25.01.2011 Petition no. E­293/09 Page 9/9