PUSHPA WADHAWAN v. EXPORTS INDIA — 1997 DIGILAW 731 (DEL)

J. K. Mehra, J. ( 1 ) THE present petition arises out of a decision of the Additional Rent Controller dated 15. 5. 1995, dismissing the eviction petition of the petitioner filed by her under Section 14 (1) (e) read with Section 25 (b) of the Delhi Rent Control Act. ( 2 ) BRIEFLY, the facts of the case are that the petitioner is the owner of the premises in dispute, which is situated on a part of a freehold plot of land measuring 1000 sq. yards bearing No. M-9, New Delhi South Extension Scheme Part-II. The said plot was purchased by the petitioner sometimes in February , 1957. It is further stated that two separate portions were constructed, one bearing No. M-9a and the other M-9. The portion M-9a was given by the petitioner on perpetual lease to her son, Arun Wadhawan, who is gainfully employed in the United States of America. That portion was let out by the petitioner s son, Arun to the employers of the husband of the petitioner, who had in turn made the said premises available to the petitioner s husband and the petitioner, i. e. , the said premises under the occupation of the petitioner and her husband was rented by petitioner s son, who had the perpetual leasehold rights therein to the employers of petitioner s husband. The petitioner s husband was employed with SAIL and was getting the rent paid for premises No. M-9a to his son, Arun Wadhawan. The said rent was paid by SAIL to Arun Wadhawan, who happens to be an income tax assessee also. The petitioners shifted into those premises No. M-9a and let out the petitioner s property being M-9, N. D. S. E. Part-II, which is the property in dispute. It is the case of the petitioner that her second son, Deepak has also moved in to stay with the petitioner and her husband and on account thereof, those premises have become too small for their needs. It is further stated that the petitioner s husband has since retired and the lease in favour of the said employer is no longer subsisting and the petitioner s son has expressed his desire to settle in India and on account thereof, he needs the premises No. M-9a vacated by the petitioner and her husband. It is further stated that the petitioner s husband has since retired and the lease in favour of the said employer is no longer subsisting and the petitioner s son has expressed his desire to settle in India and on account thereof, he needs the premises No. M-9a vacated by the petitioner and her husband. The petitioner let out the premises bearing No. M-9, N. D. S. E. , Part-II to the respondent for residential purposes, as evidenced by document AW-6/23 w. e. f. 1. 8. 1980 at a rental of Rs. 5,500. 00 p. m. alongwith service charges of Rs. 3,000. 00 p. m. which were increased after three years to Rs. 6,050. 00 p. m. as rent and Rs. 3,300. 00 p. m. as service charges in the year 1983. ( 3 ) THE petitioner filed the eviction petition on 29. 8. 1986 as she allegedly required the premises for her occupation as the residence for herself and the members of her family dependant on her. Her family consists of herself, her husband, two sons, two daughters-in-law and four grand children. She further pleaded that she does not own any other reasonably suitable accommodation available at her disposal for the residence of herself her husband, her second son, his wife and children. It was further stated that the husband of the petitioner had taken on rent the premises No. M-9a, N. D. S. E. Part-II wherein she her husband, her son Deepak and his wife and two school going children are staying. It is alleged that the son, Arun has already expressed his desire to come back to India and settle. It is in the above circumstances that the petitioner has moved the Court for eviction of the respondent. ( 4 ) THE respondent has challenged the right of the petitioner to seek eviction on the ground of personal bonafide requirement on various grounds, the main being that the petition was malafide as the petitioner did not require the premises for her and her dependants bonafide requirement and was granted the leave to defend on the said pleas. ( 5 ) AFTER obtaining the leave, the respondent contested the eviction petition on the grounds, inter-alia, that the premises were let out as a guest house for the stay of its guests and its officers and the petition was malafide. ( 5 ) AFTER obtaining the leave, the respondent contested the eviction petition on the grounds, inter-alia, that the premises were let out as a guest house for the stay of its guests and its officers and the petition was malafide. The respondent admitted the rate of rent, but denied its liability to pay any service charges. The respondent further disputed the bonafide requirement of the petitioner for the premises in question and stated that the petitioner has filed the present petition only to pressurise the respondent to enhance the rent. ( 6 ) COUNSEL for the parties have addressed lengthy arguments. Mr. Oberoi has pointed out that it is not in dispute that the petitioner and her husband have retired from their respective jobs. The property in dispute is stated to be occupied by only a care-taker of the respondent and is being put to use as company s guest house to enable the Executives, guests of the respondent company to reside there as and when they happen to be in Delhi. He has further pointed out that otherwise the premises remain vacant with only care-taker staying there. In order to prove the bonafide requirement of the landlord, the petitioner under Section 14 (1) (e) of the said Act is under an obligation to establish the following ingredients: " (1) That the petitioner is the owner of the premises; (2) That the premises are let out for residential purposes; (3) That the premises are required bonafide by the petitioner and his family members; and (4) That the petitioner does not own any other reasonably suitable accommodation. " ( 7 ) IN the present case, the facts of the petitioner s ownership, purpose of letting, status of the petitioner and her living in the tenanted accommodation and that she does not own any other property except the premises in dispute, are not in dispute. The plea that the premises M-9a, N. D. S. E. Part-II also belongs to her and that the perpetual lease in favour of her son Arun is only Sham, cannot be accepted in the face of documents produced on record and the rent having been collected by Arun Wadhawan which is reflected in his Income Tax records. Mr. The plea that the premises M-9a, N. D. S. E. Part-II also belongs to her and that the perpetual lease in favour of her son Arun is only Sham, cannot be accepted in the face of documents produced on record and the rent having been collected by Arun Wadhawan which is reflected in his Income Tax records. Mr. Oberoi has pointed out that it was only the aforesaid one increase of rent by the petitioner which had prejudiced the mind of the Trial Court against the petitioner. Counsel for the respondent has only disputed the bonafide requirement of the petitioner for the premises in question. ( 8 ) THE respondent further pleaded that the accommodation M-9a, N. D. S. E. Part-II wherein the petitioner is living with her family, is a reasonably suitable accommodation and it meets the needs of the petitioner. ( 9 ) MR. Sharda, appearing for the respondent, has raised, inter-alia, the objection of jurisdiction by stating that the Delhi Rent Control Act was amended in 1988 as a consequence whereof the premises in dispute were no longer covered under the provisions of Delhi Rent Control Act and eviction in such circumstances could be ordered only by a Civil Court. He next contended that the premises, though on rent from petitioner s son in favour of petitioner s husband, was sufficient to accommodate the petitioner, her husband, her second son and his family and no further accommodation should be made available to them, and, that the son has only expressed a desire that he would like to come back to India and settle in his premises, no proceedings have been initiated for eviction of his father. Therefore, it cannot be argued that the premises presently in occupation of the petitioner and her husband were not available to them and that there is no imminent danger of their being evicted from the said premises. Before proceeding further, another fact which may be noticed herein is that it is not the case of the tenant that he belongs to weaker section of the society or is a weaker party in the bargain of letting. Before proceeding further, another fact which may be noticed herein is that it is not the case of the tenant that he belongs to weaker section of the society or is a weaker party in the bargain of letting. The first argument, in my opinion, has no merit because the present proceedings are continuation of the original proceedings filed and that the rights of the parties could be determined in the light of the provisions of law as they existed when the petition was filed. The Court may, however, consider the effect, if any, on the rights of the respective parties as a consequence of legislative changes because entertaining such a plea from the tenant would merely serve his interest of prolonging the litigation further. In this connection, both the parties have REFERRED TO to the case of Parripati Chandrasekharrao and Sons Vs. Alapacijalaiah, reported as (1995) 3 SCC 709 wherein according to Mr. Oberoi, the tenant had no vested right under the Rent Control Act itself and argued that so long as it remained in operation, it was the landlord s normal rights vested by the general law, which were temporarily suspended. When that protection is taken away, the only effect it could have, was to take away the protection, which will be deemed to be no longer available to the tenant. That principle may be born in mind by the Courts as also could be kept in mind while passing the final judgments, but in the matters which are pending unless those are specifically covered by the legislature by the amendment, the same could be decided on the basis of the law as it existed prior to the amendment. It was, however, open to the petitioner landlady to proceed under civil law and evict the respondent, who in view of the rent being excess of Rs. 3500. 00 p. m. cannot be deemed to be belonging to the weaker section of Society in India in view of the judgment in the case of D. C. Bhatia and Ors. Vs. Union of India and Anr. reported as (1995) 1 SCC 104 . The Hon ble Supreme Court in the said case of D. C. Bhatia cited with approval the observations of Tindal, C. J. , in the case of Kay Vs. Vs. Union of India and Anr. reported as (1995) 1 SCC 104 . The Hon ble Supreme Court in the said case of D. C. Bhatia cited with approval the observations of Tindal, C. J. , in the case of Kay Vs. Goodwin, 130 E. R. 1403 (1405), which are as under:- "the effect of repealing a statute is to obliterate it as completely from the records of the parliament as if it had never been passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law. " IN the light of these observations, I find no merit in this objection of Mr. Sharda, which is rejected. ( 10 ) COMING to the main issue, Mr. Sharda cited the case of K. S. Sunderaraju Chettar Vs. M. R. Ramachandra Naidu, reported as AIR 1994 SC 2129 . Although the said judgment really lays down the law that non-mentioning of a reasonable ground for eviction in the notice of eviction on the basis of which a claim for eviction is later on founded usually raises a suspicion about the existence of such ground, but such non-mention by itself cannot disentitle a landlord to claim eviction on such ground. If a claim for eviction founded on such ground in the petition for eviction is proved to be well founded and the same is consistent with the grounds on which eviction is permissible in law, the landlord will be entitled to a decree for eviction notwithstanding the fact that such ground was not mentioned in the notice for eviction. Having cited this judgment, he did not point out any infirmity in the notice for eviction. He next REFERRED TO to the case of Ranjan Gupta Vs. A. F. Ferguson and Company, reported as 42 (1990) DLT 66. This judgment also does not help the respondent because this was a case of the landlord seeking additional accommodation which is not the case here. In the present case, the landlord s plea is that she has to vacate the house in which her husband is a tenant under his son and that she alongwith her husband, second son and his family want to move into her own house. Therefore, there is no support available to Mr. Sharda for this judgment also. In the present case, the landlord s plea is that she has to vacate the house in which her husband is a tenant under his son and that she alongwith her husband, second son and his family want to move into her own house. Therefore, there is no support available to Mr. Sharda for this judgment also. Likewise, the judgment in the case of Lalit Kumar Vijay Vs. Saroj Kumari, reported as 1969 0 DLT 545 is of no assistance to Mr. Sharda as the question of bonafide requirement was being viewed where the question before the Court was whether the need being projected, was bonafide or it was a question of sentiment or desire not based on reality and the single Bench of this Court held that it has to be assessed on the consideration of facts of each case and according to a reasonable person. In that case, this Court had clearly held that the desire to live in one s own house and to abandon the rented accommodation is the legitimate aspiration which has to be given effect to by the Rent Control Authorities and by this Court unless there are reasons to show that this desire is unjustified in any particular case. That was a case where the landlady was already in a rented accommodation when she let out her own house and without showing any alteration in the conditions, she wanted to evict the tenant and from the record, it was shown that she had filed the eviction petition only following the application of the tenant for fixation of the standard rent. That had cast a doubt on the landlord s bonafides. This judgment is also, therefore, of not any avail. He thereafter REFERRED TO to the case of Amarjit Singh Vs. Smt. Khatoon Quamarain, reported as (1983) 23 DLT 362 wherein the Hon ble Supreme Court has held as under:- "the Rent Restricting Acts are beneficial legislations for the protection of the weaker party in the bargains of letting very often. These must be so read that these balance harmoniously the rights of the landlords and the obligations of the tenants. The Rent Restriction Acts deal with the problem of rack-renting and shortage of accommodation. These must be so read that these balance harmoniously the rights of the landlords and the obligations of the tenants. The Rent Restriction Acts deal with the problem of rack-renting and shortage of accommodation. It is in consonance with the recognition of the right of both the landlord and the tenant that a harmony is sought to be struck whereby the bonafide requirements of the landlords and the tenants in the expanding explosion of need and population and shortage of accomodation are sought to be harmonised and the conditions imposed to evict a tenant are that the landlord must have bonafide need. That is satisfied in this case. That position is not disputed. The second condition is that landlord should not have in his or her possession any other reasonably suitable accommodation. This does not violate either Article 14 or Article 21 of the Constitution. " (Emphasis supplied) ( 11 ) IN the case of Smt. Sushila Devi and Ors. Vs. Avinash Chandra Jain and Ors. , reported as AIR 1987 SC 1150 , the Hon ble Supreme Court observed as under:- "while the landlord is entitled to the beneficial enjoyment of his property, the law still insists as a measure of social necessity that the Court should be satisfied as to the genuineness of the requirement of the landlord under Section 14 (1) (e ). It has to keep in view that there is acute shortage of housing accommodation in the metropolitan city of Delhi and therefore unless there is compelling necessity, there can be no order for eviction under Section 14 (1) (e ). The provision contained in Section 14 (1) (e) is meant to subserve a public interest and to strike a just balance between the competing needs of the landlord and the tenant. It is axiomatic that when a landlord applies for eviction of a tenant under Section 14 (1) (e), there is duty cast on the Court to consider the question on merits on the basis of the evidence adduced by the parties. " ( 12 ) THERE is absolutely no quarrel with the law laid down by the Hon ble Supreme Court. " ( 12 ) THERE is absolutely no quarrel with the law laid down by the Hon ble Supreme Court. A number of other rulings were cited at the Bar, the sum and substance whereof was that the Court should see whether the need of the landlord is bonafide or it is a fanciful and whimsical plea to live in his own house. Most of the cases were decided in the light of the facts prevailing in those cases just as in the case of M. M. Quasim Vs. Manohar Lal Sharma and Ors. , reported as AIR 1981 SC 1113 as the Hon ble Supreme Court had shown that was a case where vacant possession of some premises was already with the landlord and it was observed that the landlord should establish that the said premises are not suitable for the purposes of his occupation or for the purposes for which he requires the premises. That also is not the case here. ( 13 ) ON the other hand, Mr. Oberoi has laid lot of stress on various judgements cited by him, which included the cases of 1. Smt. Prativa Devi Vs. T. V. Krishnan, reported as 1987 (12) DRJ 258; 2. Sitaram Verms Vs. Smt. Saraswati, reported as 1991 (43) DLT 629 ; 3. Anil Kumar Jauhar and Anr. Vs. Atlas Cycle Industries, reported as 1989 (38) DLT 233 and 4 Mrs. Meenal Eknath Kshirsagar Vs. M/s Traders and Agencies and Anr. , reported as JT 1996 (6) SC 468. ( 14 ) IN the first of these judgments, the Hon ble Supreme Court had set aside the High Court view where the High Court had held that a 70 years old lady should continue to stay with her son and the Hon ble Supreme Court observed as under:- "that the reason given by the High Court that the appellant is an old lady aged about 70 years and has no one to look after her and therefore she should continue to live with Shri Chatterjee, was hardly a ground, sufficient for interference. The landlord is the best Judge of his residential requirement. He has a 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. The landlord is the best Judge of his residential requirement. He has a 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. The High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. Now, that is a look-out of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bonafides of the claim of the landlord under Section 14 (1) (e) of the Act. " ( 15 ) THE second case relied upon by Mr. Oberoi was that of a landlady who was occupying a rented accommodation and the Court held that her need of living in her own house was bonafide. ( 16 ) IN the third case of Anil Kumar Jauhar and Anr. Vs. Atlas Cycle Industries (supra), the question that was to be considered was whether the premises were let out for residential purpose. In that case also, the premises were let out to be used as guest house for officers of the tenant company and like the present case, those premises were also located in residential area. The Court held the premises to have been let out for residential purpose. In any event, in the present case that controversy is not there as the use for residential purpose was not disputed before me. ( 17 ) IN the case of Anil Kumar Jauhar and Anr. Vs. Atlas Cycle Industries and another, the eviction was sought by the landlord for his bonafide requirement even when the landlord was living in the accommodation given by his mother temporarily. In the present case before me, the premises have been let out by the son to his father and the son has already expressed a desire to move in. Vs. Atlas Cycle Industries and another, the eviction was sought by the landlord for his bonafide requirement even when the landlord was living in the accommodation given by his mother temporarily. In the present case before me, the premises have been let out by the son to his father and the son has already expressed a desire to move in. It is not necessary for the son to go to the point of instituting eviction proceedings and then alone Courts would come to the conclusion that there was the bonafide need for the premises. ( 18 ) IN the last case cited by Mr. Oberoi of Mrs. Meenal Eknath Kshirsagar Vs. M/s Traders and Agencies and Anr. (supra), the Hon ble Supreme Court had reiterated that the landlord is the best Judge of his residential requirement and if the landlord wants to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the Courts to dictate him to continue to occupy such premises. In the present case also, the premises occupied by the landlord are on rent taken by her husband from his son and she is seeking a right to move into her own house and so that she can vacate the premises let out to her husband by her son. In that case, the husband who was the tenant had parted with the possession of the premises in favour of his brother and the Supreme Court held that it cannot be said that the said premises were available to her and by not referring to those facts, she had come to the Court with unclean hands and that was by itself sufficient to disentitle her to decree of eviction. The Hon ble Supreme Court opined that the Appellate Bench and the High Court clearly went wrong in holding that (i) ommission was sufficient to disentitle the landlady from getting a decree of eviction and (ii) it also disclosed that her claim was malafide and not bona fide as required by law. Hon ble Supreme Court set aside the judgments of the Appellate Bench and the High Court and upheld the orders of eviction passed by the Judge Small Causes. Hon ble Supreme Court set aside the judgments of the Appellate Bench and the High Court and upheld the orders of eviction passed by the Judge Small Causes. ( 19 ) IN the light of the law cited by both the parties and discussed hereinabove, and keeping in view the facts of this case. I am unable to agree with the findings returned by the Additional Rent Controller with regard to the lack of bonafides. In this case, the respondent-tenant has succeeded in avoiding its eviction on account of the time consuming litigation which has lasted for little over 11 years. The landlady, in my opinion, has succeeded in establishing that she needs the premises in dispute bonafide for her personal use and for the use of her family members dependent on her for accommodation and is entitled to an order for eviction. I accordingly set aside the impugned order and pass an order for eviction of the Respondent-tenant. However, the tenant is given six months time to vacate the premises. ( 20 ) THIS petition is disposed of in the above terms with no order as to costs.