Delhi District Court
Sh. Sudesh Gulati vs Dr. Charanjeet Gandhi on 19 July, 2017
IN THE COURT OF HARJYOT SINGH BHALLA :
ACJ/CCJ/ARC(SE), SAKET COURTS, NEW DELHI
EV No.5123/16
Sh. Sudesh Gulati,
S/o late Sh. Hans Raj Gulati,
R/o H61, Kalkaji,
New Delhi ......... Petitioner
Versus
1. Dr. Charanjeet Gandhi
2. Dr. Neera Gandhi
Shop No.3, House No.H61,
Kalkaji, New Delhi
Also at:
F202, Anupam Apartment
East Arjun Nagar, 4CBA,
Sahadhra, Delhi32 ........... Respondents
Date of institution : 19.02.2015
Judgment reserved on : 07.07.2017
Judgment pronounced on : 19.07.2017
JUDGMENT
1. By this order I propose to dispose off the petition filed by the petitioner/landlord for eviction of the respondent/tenant from EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 1 of 29 the suit property i.e. shop bearing no. 3 in property number N61, Kalkaji, New Delhi, admeasuring 10'X10' and shown in red color in site plan, on grounds of bonafide requirement under Section 14 (1) (e) read with Section 25 (B) of the Delhi Rent Control Act.
2. As per the petitioner, the property was let out about 20 years back by the father of the petitioner to the respondent under oral agreement for running a clinic on rent of Rs.865/ per month. It is stated that the said shop is lying locked for the past more than 13 years and electricity was also disconnected way back. Title of the petitioner.
3. It is stated that the father of the petitioner namely late Sh. Hansraj Gulati was the sole and absolute owner of the property and he had executed a Will dated 30.05.2007 in favour of the petitioner as well as petitioner's elder son Sanjay Gulati. The father of petitioner Sh. Hansraj Gulati died on 21.12.2005 and by virtue of the said Will, petitioner alongwith Sanjay Gulati became the absolute owner of the property. The certified copy of the Registered Will has been placed on record. It is averred that the petitioner had filed probate petition which is pending before the Hon'ble High Court of Delhi.
Present Accommodation.
4. It is stated that petitioner's family is using a part of the said building for residence as well. Petitioner alongwith his wife, EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 2 of 29 younger son, daughterinlaw and grand child is residing in the remaining part of the building. At present they are having two rooms for residence. The petitioner because of paucity of residential accommodation has converted one shop into room as shown in yellow clour in the site plan and is using the same for residencial purpose.
5. It is averred that the petitioner is having one small shop as shown in green colour and using the same for store purpose. Though the said shop is in possession of the petitioner but the same is not suitable for running a restaurant. That for establishing a restaurant he required three shops i.e. shop no. 3, 4 and 6.
6. The shops required for the purpose of establishing the restaurant is shown in red colour in the site plan. The Need.
7. It is stated that the younger son of the petitioner namely Lucky is running a stall of eatables from the footpath. It is stated that the petitioner requires the tenanted premises alongwith two other shops as shown in the site plan for opening a Restaurant for his son. The petitioner has filed two other cases for vacation of shops in the same building as the petitioner requires a larger area for opening of a restaurant by his younger son. That the petitioner had no other suitable accommodation for establishing the EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 3 of 29 restaurant.
8. It is averred that because of nonavailability of commercial space said younger son of the petitioner constrained to sell eatables from a stall at the footpath in front of his house. The son of the petitioner already has experience of running food business and documents in support of his current business have been filed.
9. Defendant was duly served, applied for leave to defend. The application for grant of leave to defend was allowed and respondent was permitted to defend the case vide order dated 16.07.2015. WS was filed by the respondent.
Written Statement.
10. Several preliminary objections were taken. It is averred that the petition as filed is not maintainable as the petitioner has intentionally and deliberately suppressed facts and that no cause of action has been disclosed. That the the petition is an after thought and counter blast to the complaint dated 30.05.2014 made by the respondent no.2 against the petitioner to the PS Kalkaji.
11. It is averred that the petitioner has not come to the court with clean hands and has concealed the material facts regarding the properties available and owned by him and the total accommodation available with the petitioner and the various shops available with the petitoner. It is stated that the petitioner is not the EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 4 of 29 sole owner and is contesting probate case with his 6 sisters.
12. It is also submitted that the address of the respondents mentioned by the petitioner is not correct and the correct address is P202, Anupam Apartments, East Arjun Nagar, 4 CBD, Shahdara, Delhi110032.
Objections in the WS.
13. It is denied that the shop is lying locked since last more than 13 years. That petitioner's father provided no objection certificate to the respondent for taking electricity and water connection and then respondent installed the electricity, water sanitary fittings etc. in their names at the cost of the respondents. It is stated that the measurement of the shop is not 10'X10' but 18'X9 ½ '. It is stated that the respondents are operating their clinic from the premises.
14. It is stated that the property was let out under a rent note dated 28.02.1981 which has been concealed. It is stated that pagdi amount of Rs.80,000/ was also paid. It is stated that the respondent no.2 resigned from her job with CHS in order to run the clinic.
15. It is denied that the son of the petitioner is running a stall of eatables from footpath. It is submitted that the petitioner's son lucky is running a garments shop at shop no.8, H61, Kalkaji, New Delhi. It is further submitted that the petitioner's son lucky EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 5 of 29 also selling readymade garments outside the shop no.4, H.61, Kalkaji, New Delhi.
16. It is averred that the wife of the petitioner retired from Delhi Jal Board as an officer and receiving a handsome pension from DJB. The petitioner's son namely Sanjay Gulati is also a Govt. Employee, the wife of Sh. Sanjay Gulati is doing a Job. The petitioner's another son namely Anubhav Gulati / Lucky is running a restaurant at shop no.08 and his wife is doing a job. The petitioner's bonafide need is not genuine, the same is false and baseless. The petitioner has even not filed the list of total family members dependent on the petitioner.
17. It is specifically denied that at present the petitioner is having two rooms for their residence. It is averred that the petitioner has concealed the measurement of the property bearing no.H61, Kalkaji, New Delhi. The petitioner has falsely mentioned the measurement of the property is 30 X 60 sq. yards in the site plan but the same is more than 200 sq. yards. It is averred that the petitioner intentionally and deliberately close the shop no.07 by putting a wall just to create a false ground of bonafide need. It is averred that there are four rooms built up at the first floor of the property. At another place, it is averred that there are three rooms at the ground floor and four rooms at the first floor, kitchen, toilet, bathroom etc. EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 6 of 29
18. It is specifically denied that the petitioner is having one small shop no.5 as shown in green colour and the same is using the same for store purpose. It is averred that the shop no.5 is used as kitchen for rehdi/stall. It is specifically denied that though the said shop is in possession but the same is not suitable for running the restaurant. It is specifically denied that for establish the restaurant he requires three shops i.e. shop no.3, 4 and 6. It is averred that the shops no.5, 8, 9 & 10 are lying vacant with the petitioner at the time of filing of the petition but in order to create false evidence he stated false stories about the said shops and in order to create false grounds to evict the said shop he malafidely converted the shop no.7 into a room.
Other Properties:
19. It is averred that petitioner also owns following properties which were concealed by him.
(i) Property bearing no.39, Krishna Market, Kalkaji, New Delhi 110019 which is more than 90 sq. yards.
(a) A big hall lying vacant at the ground floor.
(b) First floor already built up with three rooms set alongwith kitchen, latrine and bathroom.
(c) Second floor already built up with three rooms set alongwith kitchen, latrine and bathroom.
The photograph of the same is already on record as A. EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 7 of 29
(ii) Property bearing no.G41A, 3rd floor, Kalkaji, New Delhi 110019, which is more than 100 sq. yards and the same is lying vacant and in possession of the petitioner.
(iii) A shop no.5 at K79, Basement, Main Road, infornt of H61, Main Road, Kalkaji, New Delhi110019.
(iv) A floor in Gali No.5, Govindpuri, New Delhi.
(v) A plot about 500 sq. yards in Haridwar, Uttrakund.
(vi) A flat omex in Jaipur.
(vii) A floor at sector37, Faridabad, Haryana, apart from the above said properties the petitioner is having many other properties. Evidence.
20. In order to prove his bonafide requirement, the petitioner herein himself entered the witness box. He was duly cross examined. He exhibited the following documents i.e.
i) copy of rent agreement dated 13.10.1977 as Ex. PW1/1 (OSR);
ii) copy of the rent agreement dated 14.06.2014 for the first floor of the property bearing no. 39, Krishna Market, Kalkaji, New Delhi as Ex.PW1/2 (OSR);
iii) copy of the rent agreement dated 16.05.2015 for the first floor of the property bearing no. 39, Krishna Market, Kalkaji, New Delhi as Ex.PW1/3 (OSR);
iv) copy of the sale deed dated 05.12.2009 for the property bearing no. G41A, Kalkaji, New Delhi19 as Ex.PW1/4 (OSR);
EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 8 of 29v) copy of the sale deed dated 17.08.2011 for the property bearing no. 498, Gali No.5A, Govindpuri, Kalkaji, New Delhi as Ex. PW1/5 (OSR);
vi) copy of the sale deed dated 04.03.2014 for the property bearing no. K79B, Kalkaji, New Delhi as Ex. PW1/6 (OSR);
vii) original site plan as Ex. PW1/7.
Copies of some documents were marked i.e.
i) Photocopy of registered will dated 12.06.2003 as Mark A.
ii) The photocopies of the photographs of the stall of the petitioner's son are MarkB & MarkC.
iii) Photocopy of the receipt under registration under Food Safety and Standards Act, 2006, issued on 05.12.2014 by MCD which is MarkD.
21. The respondent entered the witness box and was duly cross examined. He exhibited the documents i.e.
i) copy of rent note dated 28.02.1981 as Ex. RW1/1 (OSR);
ii) original photographs of the suit property no. H61, Kalkaji, New Delhi as Ex. RW1/2 (colly);
iii) original photograph relating to property no.39, Krishna Market, Kalkaji, New Delhi110019 as Ex. RW1/3;
iv) original photographs relating to shop no. 3, H61, Kalkaji, New Delhi as Ex. RW1/4 (colly),
v) original rent receipt dated 03.04.1981 and 01.12.1998 as EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 9 of 29 Ex. RW1/5 (OSR ) & Ex. RW1/6 (OSR),
vi) copy of complaint to SHO dated 30.05.2014 as Ex. RW1/7 (OSR),
vii) statement of petitioner dated 30.05.2014 before the police as Ex. RW1/8 (OSR),
viii) copy of certificate regarding the loan availed by the respondent no.1 of Rs.45,000/ dated 10.02.1981 from Canara Bank as Ex. RW1/9 (OSR),
ix) copy of certificate regarding the loan availed by the respondent no.2 of Rs.70,000/ approx, released on 06.02.1981 from Syndicate Bank as Ex. RW1/10 (OSR)
x) copy of passbook of the respondent no.2 showing that the petitioner encashed the cheque no. 824307 dated 03.04.2014 of Rs.2910/ regarding rent up to May 2014 as Ex. RW1/11 (colly).
xi) He also relied upon the documents which are already exhibited by the petitioner i.e. the original correct site plan as already Ex. PW1/X2 and the petitioner's son Lucky running garment shop outside the shop no. 4 and petitioner and his wife running stalls and photograph of kitchen at shop no. 5 which are already Ex. PW1/D1 to Ex. PW1/D6 respectively.
22. I have gone through the evidence of the parties. Firstly, I would like to deal with the dispute with regard to accommodation available at H61, Kalkaji. The respondent had claimed in the EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 10 of 29 written statement that there are three rooms on the ground floor and four rooms at the first floor of this property and that even conversion of one shop into room is artificial i.e. for feigning paucity. However, when the respondent was cross examined he admitted that the first floor has no concrete wall and only fibre sheets. Relevant portion of cross examination is reproduced herein for ease of reference:
It is correct that at the first floor there is no concrete wall and it has only fibre sheet. At the roof, there is a false ceiling. I cannot show the rooms at the first from the photograph. I cannot see living room at the first floor in the photograph (Vol. But there is a hall). I cannot say whether or not the fibre room visible in the photograph is being used as a living room. It is correct that the entire first floor is a hall. I never visited the first floor. (Vol. The division of rooms is by using curtains which can be used to create and remove divisions). I have never visited the first floor after possession was handed over to the respondent. Q. I put it to you that in the year 1981 when you had taken the premises on rent the fibre sheet was not in existence, what do you have to say?
A. Partly in the rear side of the building they were there.
I do not remember what was partly on the first floor. I have seen the staircase. At that time the staircase was cemented and now I do not know. I do not know whether there is any provision of electricity facility at the first floor or not.EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 11 of 29
In response to Court Questions.
There is no roof of RCC on the first floor. The roof of the first floor is made of asbestos/fiber, tin sheets. There are no brick walls at the first floor level, only stairs from ground floor to first floor is cemented.
23. Thus, clearly, all throughout the tenant had been raising a false claim that even in the property no. H61, Kalkaji there was ample space for the petitioner and his family and there was no need for conversion of a shop into a room. Claim had been made that there were rooms available on the first floor as well. This claim falls flat in view of the cross examination. The structure on the first floor is temporary. On the other hand is the testimony of the petititioner where he states that there is one room on the ground floor and one shop had to be converted into a room. It was never put to this witness that he had not converted the shop no.7 into a room or that he had rooms on the first floor. The respondent was specifically asked about conversion of shop no.7 into a room and relevant portion of his cross examination is being reproduced hereinbelow:
It is wrong to suggest that shop no. 7 has been converted to a room. (Vol. It is being used as a room as well as a shop). I have seen that during the day shop no. 7 is used for commercial purpose and in the night, it is used EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 12 of 29 for residential purpose.
In response to Court Questions.
The petitioner and his family members sleep in shop no. 7 to my knowledge. I cannot say whether it is a tedious job to make the room commercial and residential once every day. (Vol. Only the goods have to be moved a little). I say that the shop no. 7 is used for commercial purpose during the day as I have seen medium size cooking utensils, usually not meant for residence in the shop no. 7 during the day. I had last visited the tenanted property 3 to 4 days back. There is no shutter in shop no. 7 as on date. There is only one door leading to the gali in shop no. 7.
24. The aforesaid testimony clearly establishes the desparation of petitioner and his need for space. The respondent's own admission that shop no.7 is used commercially during the day and as residence during the night by shifting goods speaks volumes about the need of the petitioner. The same by no means would be an easy exercise, but rather must be very disturbing as well besides being inconvenient. Therefore, the residential space available with the petitioner and his need to convert one shop into a room stands explained.
25. As far as availability of other shops in the said building bearing no.H61, Kalkaji, is concerned, the respondent admitted that:
It is correct that adjoining to my tenanted shop EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 13 of 29 there was a shop of Rakesh Talwar. The way/rasta along with the shop of Rakesh Talwar is around 4 ft.......
It is correct that the shop shown in the site plan bearing no. 1, 2, 3 and 4 falls on the main road. It is correct that shops bearing nos. 5 to 10 falls around 4 ft. wide gali. I do not know whether possession of shop no. 6 has been handed over by the tenant pursuant to the eviction order of the court. ........ It is wrong to suggest that I have not filed any photograph of shop nos. 8 to 10, witness has pointed out to photograph already Ex. RW1/2 (colly). I cannot say whether there is no sufficient space available with the petitioner as on date to open a restaurant. (Vol. As I do not know what kind of restaurant petitioner proposes to start).
26. From this cross examination, it stands established that shop no. 6 to 10 are in a gali which is only 4 feet wide. In my view the same individually or even cumulatively unfit and insufficient for opening a restaurant. 4 feet wide gali can hardly be considered commercially viable for opening a restaurant. The fact that shop no. 1, 2, 3 and 4 fall on the main road is admitted. Undoubtedly, the said shops are more fit for being combined for opening of a restaurant. Therefore, shop no. 6 to 10 cannot be even otherwise considered as alternate suitable accommodation.
27. I may even refer to petitoiner's cross examination on EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 14 of 29 these aspects:
There are 10 shops in property H61, Kalkaji, New Delhi. The shop no.1 is with one Mr. Desh Raj. Shop no.2 is under the tenancy of Mr. Ramesh Ahuja. Shop no.4 is with one Mr. Rakesh Talwar. Shop no.5 is in my possession. (vol. It is a small store). Shop no. 6 is with one Mr. Parvinder Singh.
Shop no.7 has been converted to residential room. It is correct that the shop no.7 was converted to room prior to the filing of this petition. It is wrong to suggest that the said shop was converted to room intentionally to create paucity of commercial space. It is correct that I am in possession of shop no. 7 to 10. (vol. Shop no. 7 is a room and in shop no. 8 a Boutique is already being run). It is wrong to suggest that I could have operated or can operate the proposed restaurant from shop no.7 to
10. (vol. The said shops are in a narrow lane 4 (four) feet wide). It is wrong to suggest that shop no.7 to 10 were lying vacant at the time of filing the present petition. (vol. Shop no.9 and 10 were vacated later on about one year back).
In response to court question : Shop no. 9 & 10 were vacated voluntarily by the tenant and not through Court of law.
At this stage, witness has been shown photographs filed on 26.08.2015. Witness accepts the photographs as correct. The same are now Ex.
PW1/D1 to Ex. PW1/D3. It is correct that portions of my property are visible in the said photographs. It is correct that I can be seen running Dhabha in the said photograph in Ex.
PW1/D3. It is correct that my son Sh. Anubhav can be seen in Ex. PW1/D1 & D2. It is wrong to suggest that my son can be seen selling cloths out side the shop no.4 in the said photographs in Ex. PW1/D1 & Ex. PW1/D2. It is wrong to suggest EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 15 of 29 that my son can be seen running away from the cloths stand in the photographs as he became aware that photographs were being click. It is wrong to suggest that my son Anubhav Gulati is running Garments shop from shop no.8. It is correct that the photographs now Ex. PW1/D4 and Ex. PW1/D5 are of shop no.5. (vol. Only outside of the shop is visible). It is wrong to suggest that inside of shop no.5 can be seen in Ex. PW1/D5. It is correct that the photograph now Ex. PW1/D6 is of shop nos. 5 to 10. It is wrong to suggest that no sign boards can be seen in Ex. PW 1/D6 because no business is being carried out from these shops as alleged in the petition. (vol. Sign boards can not be seen because of the width of the Gali and are installed on the front side instead of on the top of the shop.
28. Photograhps Ex.PW1/D1 to Ex.PW1/D5 show how the food stall, utensils etc. are placed on the footpath outside the shops and how little space is available for the petitioner. The struggle of the petitioner for earning his livelihood is writ large on these photographs. They do not aid the claim of the respondent in any manner.
29. As far as other properties are concerned, I shall now proceed to deal with each property claimed as available and concealed by the respondent.
30. Firstly, property no. 39, Krishna Market: The petitioner took a stand that property no. 39 comprised of ground, first and second floor. His elder son is occupying the same for his EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 16 of 29 residence. The first floor is under tenancy of one Hellim Precision Construction and Trading Pvt. Ltd. and the ground floor under the tenancy of one Ruby Ice cream. Petitioner deposed in his affidavit that only the ground floor was commercial and coulde be used for restaurant but it was already on rent and therefore, not available. Lease deed for the first floor is exhibited as Ex.PW1/2 (OSR) and Ex.PW1/3 (OSR). As far as the ground floor is concerned, the oral testimony that same is let out to M/s Ruby Ice cream has not been challenged. No suggestion was put to the witness that M/s Ruby Ice cream was never a tenant in the ground floor of property no.39, Krishna Market and that the ground floor is lying vacant. The respondent's own cross examination on the aspect may also be referred to:
At this stage, the witness is confronted with photograph Ex. RW1/3.
Q. You have stated in your affidavit that property No. 39, Krishna Market, is lying vacant. On what basis you have stated so?
A. I have only stated about the ground floor being vacant as the shutter was closed and the entry from the rear was also closed when I visited. I also did not find any worker present there.
Ex. RW1/3 was not taken by me but the same is taken by photographer. It is correct that Ex. RW1/3 the ground floor can be seen open.
Q. Did you verify or question anyone
about the occupant of the ground floor?
EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 17 of 29
A. It was lying shut and I did not find
anyone.
I was not there when the
photographer took the photo. I am seeing for the first time that the shutter is open in Ex. RW1/3 although on that day the shop was closed. I do not remember when the photograph was handed over to me by the photographer.
I do not purchase medicine in the name of clinic. (Vol. I have purchased them in the name of residence address).
Long time back I had seen the first and second floor of property bearing no. 39, Krishna Market. I do not remember on which floor Sh. Hansraj Gulati used to live at that time but he was residing on first or second floor. The market is residencecumcommercial. I do not know if the elder son of the petitioner is residing at the second floor. I do not know whether the first floor of the said property is in occupation of the tenant or not. It is correct that photograph Ex. RW1/3 is showing the air condition at the second floor but I cannot say from the photograph whether at first floor there is an air condition or cooler. Only the terrace of second floor of property bearing no. 39, Krishna Market is showing vacant. Again said as per my memory only terrace was vacant at that time.
31. Thus the respondent's own document i.e. Ex.RW1/3 shows that the ground floor was lying opened and even an ice cream rehdi is visible in the said photograph. The photograph is EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 18 of 29 belying the claim that the ground floor was vacant and lying locked. I may note that restaurant can be opened only in commercial premises and therefore ground floor of the property is the only relevant area for this purpose. Therefore, property no.39, Krishna Market cannot be considered as available accommodation and non mentioning of the same in my view does not affect the claim of the petitioner.
32. As far as property no. G41 A is concerned, the petitioner categorically deposed that he was owner of only third floor of the said property which was residential. He exhibited the sale deed as Ex.PW1/4 (OSR). The respondent's own cross examination may also be referred to where he admits:
It is correct that the property bearing no. G 41A, Kalkaji, entirely residential.
33. The said property is therefore not relevant for the proposed need of the petitioner i.e. opening of a restaurant by his son.
34. Thirdly, property no. K79, basement, Kalkaji: the petitioner's stand was that the said property is in the name of his wife and younger son and does not belong to him. The sale deed of the same is exhibited as Ex.PW1/6 (OSR). Therefore, there is no concealment by the petitioner. Even otherwise, he deposed that the said property is in the interior of colony and basement can only be EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 19 of 29 used for storage purpose and not for running a restaurant. Even otherwise, property no. H61, is commercially more viable. There is not challenge to this part of testimony as well. In any event, the same is not owned by the petitioner and not exclusively owned by his son Anubhav. The respondent's cross examination on the aspect is as follows:
I had visited the property bearing shop no. 5 in property no. K79. It is correct that the said shop is in the basement.
35. Judicial notice can be taken of fact that commercial premises on the ground floor of a market area is better suitable for business of fast food/eatery and would invite more footfalls due to ease of access. Convenience of customers is the first thing a businessman may keep in contemplation while planning a business venture and is a relevant aspect. The High Court of Delhi and the Supreme Court of India have in several cases taken judicial notice of the fact that ground floor is more suitable for commercial activity. When the front and rear portion of ground floor is to be considered obviously the area having better visiblity, access and footfall is more suitable than the area which is not. The requirement of law is that the landlord has no "suitable"
"alternate accommodation". In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 The Supreme Court has held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. The above principle laid down by the Supreme Court was also cited with approval EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 20 of 29 by the Supreme Court in Dhannalal vs Kalawatibai AIR 2001 SC 2572. In Dhannalal (supra) the Supreme Court also laid down to what extent the court has a role to play in deciding the case and I quote:
The bona fides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, his subjective choice shall be respected by the Court.14.
36. The court also noted that a Shop on the First Floor is not suitable when compared to a shop on the Ground Floor and I quote:
For the business, which the respondents Nos. 2and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do.15.
37. Reliance is placed on the decision in Kanta Sachdeva & Anr Vs. A.D. Choudhary, RC Rev 362/11, decided on 10.10.2012 wherein it was observed in para 5 and I quote:
The ld. ARC has rightly observed that the upper floors' halls cannot be used for setting up office for the son of the respondent and in any case, the office on the ground floor from where the sale is to be conducted, is more convenient than on the upper floor. He also observed, and rightly so, that the tenant cannot compel and dictate the landlord EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 21 of 29 to set up the office for his son on the upper floor of the suit premises, which are undisputedly being used for storage of books. It cannot be disputed that the business of sale of books as also the office for the same can be better looked after and managed from the ground floor than from the upper floor. It is well known fact that office situated on the ground floor is more convenient than on the upper floors and the landlord/owner has all the rights and choices to have the business/office for himself or his family members in the premises which is more suitable and convenient, if the bonafide of the landlord is established.
38. Similar view was taken in another case tilted Viran Wali Vs. Kuldeep Rai Kochar, 174 (2010) DLT 328. This issue of alternative accommodation has been discussed by the Hon'ble Delhi High Court in case titled as Viran Wali Vs. Kuldeep Rai Kochhar in revision petition no. 124/10 vide its order dt. 12.11.2010. The relevant part is reproduced hereunder :
24. "The concept of alternate accommodation means that accommodation which is "reasonable suitable" for the landlord. As to alternative accommodation dis-entitling the landlord to the relief of possession, it has been held time and again that it must be reasonably equivalent as regards suitability in respect to the accommodation he was claiming. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 22 of 29 need......."
39. In the case of Tagore Education Society Regd. Vs. Kamla Tandon, 2009 (161) DLT 232, it was held :
As far as issue of bonafide need is concerned, ...... the Apex Court in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta 80 (1999) DLT 731 and this Court in Rajender Kumar Sharma & Ors. Vs. Leelawati & Ors. 155(2008) DLT 383 have categorically held that bald and baseless plea/averments by tenant are not sufficient and that it is the landlord's wish as to how he/she is desirous to fulfill his/her requirement...
40. In Sarla Ahuja Vs. United India Insurance Co. Ltd. AIR 1999 SC 100, it has been held as under :
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 bonafide. 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 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 without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself..EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 23 of 29
41. Fourthly, property in Govindpuri, Gali no. 5: Petitioner deposed that property no. 498, Gali no.5 A, Govindpuri is on the third floor and residential. Its sale deed was exhibited as Ex.PW1/5. The nature of this property has not been disputed. The respondent's own cross examination is as follows:
I cannot tell the property number of the Govind Puri in Gali No. 5. The same is upon 2nd or 3rd floor. It is correct that the said property is residential. (Vol. It is residencecum commercial). I do not have any document to show that the property Govind Puri is residentialcumcommercial).
42. In my view, petitioner has been able to show that his son is running a eatery from the footpath outside his own building. He has been able to show that a major part of this building including several shops falls on a 4 feet wide gali/lane not suitable for being used as a restaurant. That the petitioner has been using some portions as residence even though they can be used as shop. There is no other alternate suitable accommodation available. The petitioner has been able to establish that all other properties are neither vacant nor suitable for opening a restaurant. The suitability of shops towards the main road including the tenanted portion i.e. shop no.3 for opening a restaurant has been established. From the evidence, it can be concluded that ground floor, first floor of property bearing no. 39, Kalkaji, New Delhi are already on rent.
EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 24 of 29The second floor is being used for residence by the son of the petitioner. Third Floor of property no. 498, Govindpuri, Kalkaji , New Delhi ; Property no. G41 A, Third Floor, Kalkaji, New Delhi are not suitable for being put to proposed commercial use. As far as property no. K79 B, Shop no. 5 basement, Kalkaji, New Delhi, the testimony of petitioner that same is only fit for godown and cannot be used for commercial purpose has not been probed nor questioned. The statement that even said property is not vacant has also not been challenged. Thus, it stands proved that none of these properties are suitable for opening a Restaurant/eating joint.
43. The evidence shows that petitioner requires accommodation for his son who is constrained to operate from the footpath, even though his father owns several shops which are occupied by tenants and what is left with the father is not sufficient for running business of restaurant. Therefore, the bonafide need of the petitioner stands established. It has been proved by the petitioner that his son Lucky @ Anubhav Gulati has been operating a food stall from the footpath near the building in question. There is another interesting aspect. There is no water or electricity supply to the tenanted portion since long. The cross examination of the respondent relevant to this aspect is as follows:
It is correct that I got water connection in the tenanted shop. I have not paid the water bill since long. (Vol. Since the wife of the petitioner EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 25 of 29 was in the Delhi Jal Board, she got my connection disconnected prior to her retirement and there is no connection). I have not filed any complaint against the wife of petitioner about the disconnection of my water connection. It is wrong to suggest that the water connection is still there. It is wrong to suggest that presently there is an outstanding liability of Rs. 95,940/ against the meter in my name. At this stage, witness is confronted with the Delhi Jal Board bill now Ex. RW1/X1 dated 14.04.2017. I was under the impression that the connection is still disconnected and no bill has ever been received by me.
In response to Court Question.
I never approached the office of the Delhi Jal Board. No disconnection notice was ever served to me. I have never written any letter to department that I am not receiving any water, any bill. I cannot say right now as to when I paid the last water bill.
It is correct that there is no electricity connection in the tenanted premises. (Vol. I only visit the tenanted premises along with my wife during the day). I offer service at the door of the customer or telephonic consultation, sometimes even patients visit my clinic at the tenanted premises. I maintain record of my patients visit. I never purchased medicine at the address of the tenanted premises.
..............EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 26 of 29
It is wrong to suggest that the tenanted shop is lying shut for 15 years and I am only holding to the same to extract money from the petitioner. My residence is around 18 km from the tenanted shop. I do not remember when the electricity was disconnected. I cannot say whether 15 years have elapsed since electricity was disconnected with any certainty but 8 to 10 years have elapsed for sure. (Vol. We had used inverter for some time).
In response to Court question.
One charge of the invertor used to last for 25 days. There was only one battery. We used to remove the battery after it was discharged and take it home in car charge it there and bring it back. The inverter used to be left at the shop and battery used to given to battery service shop for charging. I used to pay Rs. 50/ for getting the battery charge. The getting of electricity connection would have been more convenient but since the servant was getting the battery charged, I chose not to get electricity connection.
44. From this evidence it is clear that firslty, the respondent tenant has left a huge outstanding water bill against the connection to the tenanted portion. He has allowed the electricity to be disconnected. He has never claimed reconnection. I am satisfied that the presmises are lying locked and are not used nor required by the respondent tenant but he just does not want to vacate them since he is statutory tenant.
EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 27 of 2945. It is settled law that so long as the son of a landlord is dependent on his father for accommodation, landlord can seek eviction for son's bondafide requirement. It has not been proved by the respondent that the son of the petitioner is independent. Rather he has himself proved that the son of the petitioner sits on the stalls outside the suit property and operates from footpath. Reliance is placed upon decision in Inderjeet Singh Vs. Harish Chandra Shantani 192(2012) DLT 124 where it was observed:
In any case, this issue is irrelevant to the current proceedings due to the face that even if the son of the petitioner is carrying on his business still as a father the petitioner is obliged to make efforts for setting up a business in a suitable place for his son. Such a requirement is quite reasonably and justified and cannot be termed as malafide. It is not the case of the respondent that the petitioner is in possession of any alternate accommodation from where his son could carry his business. If a person is owner of a commercial property, but is forced to pay rent towards a tenanted premises, then his requirement for possession of his property is bonafide and must be recognized. The respondent has failed to show as to how the son of the petitioner is not dependent on him for the requirement of the premises for carrying for carrying his business.
46. Petitioner has also been able to show he has better title EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 28 of 29 than the respondent to the property and admittedly, respondent was inducted as a tenant by the predecessor of the petitioner. An eviction order is hereby passed under Section 14 (1) (e) of DRC Act. Petitioner shall not be entitled to claim possession for six months. File be consigned to Record Room.
Announced in the open Court (Harjyot Singh Bhalla) dated 19.07.2017 ACJ/CCJ/ARC/ SouthEast, Saket Court Complex, New Delhi EV No.5123/16 Sudesh Gulati Vs Dr. Charanjeet Gandhi & Anr Page 29 of 29