IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
RC Rev.261/2010
Date of Decision : 04.09.2012
SHRI SUKHBIR SINGH
...… Petitioner
Through :
Mr.D.S.Sidhu, Adv. with Mr.B.D.Sharma, Adv.
Versus
DR. I.P. SINGH
Through :
Mr.V.K.Sharma, Adv.
…...Respondent
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. The present revision petition has been filed under Section 115 of the Code of Civil
Procedure (CPC) read with Section 25 B (8) of the Delhi Rent Control Act (herein after
referred to as “the Act”) against the order dated 15.07.2010 passed by the ld. ARC
whereby the eviction petition no. 32/2008, filed by the petitioner under Section 14 (1) (e)
of the Act, was dismissed.
2. In the said eviction petition, it was submitted by the petitioner that he is the owner and
landlord of house no. 1/10784, Subhash Park, Main Road, Naveen Shahdara, Delhi( suit
premises) and the respondent is his tenant in two shops ( suit shops) situated at the
ground floor of the suit property, which were converted into one big shop. It is submitted
by the petitioner that the ground floor of the suit premises consisting of the suit shop
faces the main road and, towards the west of the shop, there is a passage of approximately
three feet leading to the rear portion of the building. It is further submitted that the
petitioner is a milk trader and used to do the business from the rear portion of the suit
premises, where his buffaloes and cows were also kept. But, due to old age, pain in the
joints and foul smell of excreta of cows and buffaloes, and change in law related to
keeping of cows and buffaloes, he was forced to stop his business of milk vending. It is
further submitted that he now intended to do the business of milk and milk products from
the suit shop and hence it is required by him bonafidely for himself. It is also averred that
the respondent tenant has built up a three storey house, just opposite the suit premises,
and is running a clinic as well as a pathology lab from the ground floor of his own house,
and he no longer required the suit shop.
3. The respondent tenant, upon being granted leave to defend, filed his written statement
wherein preliminary objection is raised by him that the petitioner had sufficient
accommodation at his disposal and there is no bonafide requirement of the suit shop by
him. The respondent tenant gave details of five properties alleging these to be owned by
the petitioner landlord. His averments in this regard are as follows:
(a)A-77, Panchsheel Garden, Shahdara, Delhi, which is ad-measuring 80 sq.yds. and, is
facing to the main road of 40’ wide and the son of the petitioner, namely Sh.Rakesh, who
is teacher by profession, is residing in this property, wherein petitioner has inducted a
new tenant recently on the ground floor and one shop at the ground floor is lying vacant.
(b) Property no. 1/10784, Subhash Park, Main Road, Naveen Shahdara, Delhi, which is
300 sq.yds. plot having four storyed building consisting ground, first, second and 3rd
floor. There are three tenants including the respondent. In this premises, the petitioner is
running Milk Dairy and taming the buffaloes and selling their milk. The petitioner is
residing in this property alongwith his son namely Mukesh, who is a teacher in Govt. of
NCT of Delhi and the petitioner inducted one Mohamddan lady as tenant at third floor six
months back.
(c) Property no. 1/11277, Gali No. 1, Subhash Park, Naveen Shahdara, Delhi-110032,
which is more than 100 sq.yds. and is facing to the main road. There are six tenants in
this property and also one recently inducted new tenant therein on the Ground Floor.
(d) Property No. 1/11585, Gali No. 4, Subhash Park, Naveen Shahdara, Delhi, which is
more than 120 sq.yds. The petitioner is running a building material shop in the name of
‘Harsh Building Material and Property Dealer’ alongwith his son Rajesh on the entire
ground floor and rest of the property, which is two and half storyed, is occupied.
(e) One big plot allotted by MCD in Ghazipur, Delhi for running a dairy under the
relocation scheme of Slum & J.J. Deptt. Of MCD, which is lying vacant. The petitioner
has not shifted his dairy at the allotted plot and is still running his dairy in the back
portion of the suit premises.
4. It is further submitted by the respondent tenant that the petitioner had falsely stated that
he had ceased to run the business of milk vending from the rear portion of the suit
premises, and in fact the petitioner is still having all the cows and buffaloes in that
portion and is running the same business. It is also denied that the petitioner had to go
door to door to sell milk, which is not possible for him, due to old age. It is submitted that
the petitioner is still selling the milk from the suit premises and there is no
discontinuation of this business, whatsoever. It is further submitted that the petitioner is
physically fit and also running a building material shop in the name of “Harsh Building
Material & Property Dealer” along with his son from property no. 1/11585, Gali No. 4,
Subhash Park, Naveen Shahdara, Delhi.
5. Both the parties then led their respective evidence and the ld. ARC was in agreement
with the respondent tenant’s submission that the petitioner had sufficient accommodation
at his disposal at Ghazipur and property no. 1/11585-B, Gali no. 4, Subhash Park ,
Shahdara, Delhi, and there is no bonafide requirement of the suit shop by him and,
accordingly he dismissed the petitioner’s eviction petition. Hence the present revision
petition is filed by the petitioner.
6. The order of the ld. ARC has been challenged by the petitioner on the ground that it
has been passed in a routine manner, without application of judicial mind. It has been
further urged that the landlord is entitled to assess the need and requirement for himself,
and neither the Court, nor the tenant can dictate to him the mode and manner in which he
should live or carry out his business.
7. On the other hand, the respondent has submitted that there is no requirement of
interference with the well reasoned and speaking order of the learned Rent Controller. It
has been further submitted that the onus to prove the bonafide requirement of the suit
shop was on the petitioner, which he failed to discharge, and hence the order of the ld.
ARC cannot be faulted with. It has been further urged that it was successfully proved
before the ld. trial Court that the petitioner is in possession of other properties, which
were concealed from the Court, and hence there was no bonafide requirement of the suit
shop by him.
8. Now, let me examine the facts and circumstances of the case in order to arrive at the
conclusion that whether the impugned order confirms to the settled parameters of law or
it requires interference by this Court. The issue before this Court is whether the
requirement, as projected by the petitioner landlord, is bonafide or not, and whether he is
in possession of suitable alternative properties as claimed by the respondent tenant.
9. The respondent tenant has alleged the petitioner to be in possession of several other
properties. In support of his contention that the petitioner was the owner of property no.
1/11585, Gali No. 4, Subhash Park, Naveen Shahdara, Delhi, the respondent tenant
examined RW-2, Shri P.C. Saxena, Zonal Inspector , Property Tax Department,
Shahdara. He brought the summoned record of the said property, which showed the
petitioner to be the owner of the said property. This fact has been vehemently denied by
the petitioner, who stated that this was his son Rajesh, who is doing business and he has
no concern with this. In any case, taking as it is stated by the respondent/tenant that the
petitioner was doing the business of building material and property dealer along with his
son Rajesh on the ground floor of this premises, there is no dispute that the remaining
part of the premises was occupied by the petitioner’s son. Further, there is no bar for the
petitioner to do this business, as also to do the business of selling of milk, when
admittedly, his health so permitted.
10. With regard to the property bearing no. 1/11277, Gali no. 1, Subhash Park, Naveen
Shahdara, Delhi-110032, undisputedly, this was the respondent’s own case that there are
six tenants and his plea that one tenant was inducted therein recently, was denied by the
petitioner/ landlord. Nothing has been brought on record by the respondent /tenant to
prove the contrary.
11. The respondent tenant had further alleged that the petitioner was allotted a plot by
MCD at Ghazipur under the Relocation Scheme of Slum and J.J. Department. From the
perusal of the impugned order, it is also evident that the petitioner had admitted in his
cross examination that a dairy plot was allotted to his father in Gharoli dairy farm at
Ghazipur for running a milk dairy. He also admitted that the dairy was also run by him
and his family for some time. He further deposed that the said plot was encroached upon.
He admitted the fact that the encroachers had been persuaded to give the possession of
the plot back to the petitioner, which effectively means that the possession of the said plot
now rests with the petitioner.
12. The respondent tenant has no doubt been successful in proving that the petitioner
landlord is in possession of a plot at Ghazipur, but this fact itself is not sufficient to out
rightly discredit the requirement of the landlord. The Court has to be mindful of the fact
that the petitioner is a 65 year old man and it would be no doubt difficult for him to cover
the distance till Ghazipur for the purpose of running a dairy. The respondent’s case is that
the petitioner is quite healthy and is running business of selling milk of cows and
buffaloes in the rear portion of suit premises. The petitioner may have been keeping
buffaloes and cows in the rear portion of suit premises but, it is illegal to do so after the
amendment of the law and, it has to be discontinued by him, sooner or later, if it has not
yet been done. Undisputedly the petitioner has been in the trade of selling milk of cows
and buffalos and is capable of continuing to do so. But, then he cannot be compelled to
continue to do so only from Ghazipur dairy, which is at a far-away place or even from the
rear portion of his residential premises, where keeping of tamed animals is prohibited. It
would be unjust and indeed draconian to deprive the petitioner of the right to utilize the
shop in the property owned by him and force him to carry on his intended business from
a far away place at Ghazipur, especially in the evening of his life. The landlord is the best
judge of his requirements and cannot be deprived of this right. In Pratibha Devi vs. T.V.
Krishnan 2001 AIR SCW 4661, the Hon’ble Supreme Court held that it is a settled
position of law that the landlord is the best judge of his requirement for residential or
business purpose and he has got complete freedom in the matter. While deciding the
question of bonafide requirement of the landlord, it is futile and irrelevant to make an
inquiry as to how else the landlord could have adjusted himself. The concept of bona fide
necessity should be meaningfully construed so as to make the relief granted to the
landlord real and practical. In Ragavendra Kumar v. Firm Prem Machinery & Co
[2000]1SCR77, it was 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.
13. Also, it is an admitted fact that the petitioner has been engaged in the business of
selling milk and in such scenario it is quite natural for him to have the intention of
running a business of selling milk and milk products. I find this requirement to be quite
reasonable and just. In Siddalingamma & Anr. Vs. Mamtha Shenoy (2001) 8 SCC 431,
the Hon’ble Supreme Court while considering the reasonable and bona fide requirement
of landlord, held that the question to be asked by a judge of facts, by placing himself in
the place of the landlord, is, whether in the given facts proved by the material on record,
the need to occupy the premises can be said to be natural, real, sincere and honest. If the
answer be in the positive, the need is bona fide. In my considerate opinion, the petitioner
has amply proved that his requirement is a bonafide one.
14. Regarding the contention of the respondent tenant that the petitioner did not disclose
the fact of being in possession of other properties, it would suffice to say that nondisclosure of properties which were not suitable to meet the petitioner’s requirement is
not fatal to his case.
15. In view of the foregoing discussion, it is evident that jurisdictional error has been
committed by the ld. ARC, which calls for interference. The impugned order is
accordingly set aside and eviction is decreed in favour of the petitioner landlord. The
respondent tenant is ordered to hand over the vacant and peaceful possession of the suit
shop to the petitioner. The petition is disposed off in these terms. No order as to costs.
Sd./M.L. MEHTA, J.
SEPTEMBER 04, 2012