Delhi High Court
Saranjit Singh Bhatia vs Kamlesh Chugh on 29 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th August, 2017.
+ RC.REV. 385/2017
SARANJIT SINGH BHATIA ..... Petitioner
Through: Mr. Aditya Madan, Adv.
Versus
KAMLESH CHUGH ..... Respondent
Through: Ms. Rashmi B. Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Caveat No.753/2017
1. The counsel for the caveator/respondent has appeared.
2. The caveat stands discharged.
CM No.30396/2017 (for exemption)
3. Allowed, subject to just exceptions.
4. The application is disposed of.
RC.REV. 385/2017 & CM No.30395/2017 (for stay)
5. This Rent Control Revision Petition under Section 25B(8) of the Delhi
Rent Control Act, 1958 impugns the order [dated 26 th April, 2017 in Ev.
No.5182/2016 of the Court of Additional Rent Controller (ARC), South-East
District, Saket Courts, New Delhi] of dismissal of the application filed by the
petitioner for leave to defend and the consequent order of eviction of the
petitioner from private shop No.5 on the ground floor of property No.B-102,
Lajpat Nagar-I, New Delhi.
RC.REV.385/2017 Page 1 of 5
6. The ground on which eviction of the petitioner is sought is that the
respondent wants to convert the shops in the property including the shop in
tenancy of the petitioner into residential use, owing to her inability to climb
stairs to the upper floor residential portion of the property.
7. The counsels have been heard.
8. The respondent/landlady instituted the petition for eviction inter alia
pleading that she along with her family members was residing on the upper
floors of the property and that the shop in the tenancy of the petitioner is
required by the respondent/landlady to convert a part of the ground floor into
residence for the respondent/landlady owing to the inability of the
respondent/landlady in old age and owing to her medical condition, to climb
the stairs to the upper floor.
9. A copy of the site plan of the ground floor portion of the property in
ownership of the respondent/landlady is at page 94 of the paper book. The
same shows the entire ground floor to be comprising of six shops and does
not show any toilet or kitchen facilities anywhere on the ground floor.
10. The counsel for the respondent/landlady, on enquiry, as to how, in the
absence of a toilet and kitchen, the respondent/landlady would use any part
of the ground floor for residence, states that the respondent/landlady will
construct a toilet and a kitchen on the ground floor and has filed a proposed
site plan also before the ARC and copy of which is at page 95 of the paper
book.
11. It is also on record that the respondent/landlady is already in
possession of four out of six shops on the ground floor and of which, in one
shop the son of the respondent/landlady is carrying on business and in
RC.REV.385/2017 Page 2 of 5
another the respondent/landlady herself is carrying on business and the other
two shops are stated to be lying vacant, according to the respondent/landlady
for conversion of use of part of ground floor for residential purposes.
12. The counsel for the respondent/landlady, on enquiry, states that the
shop from which the respondent/landlady is carrying on business of car seat
covers was earlier in the tenancy of a tenant and after obtaining possession
thereof about two years back, the respondent/landlady has commenced
business therefrom, earlier of a boutique and now of car seat covers.
13. On enquiry, as to why the respondent/landlady cannot use the shop
from where she herself is carrying on business and the other vacant shops,
for residence, the counsel states that the respondent/landlady needs to have
an income by carrying on business and in any case the space of that shop is
very less.
14. The aforesaid explanation cannot be considered plausible at the stage
of leave to defend in as much as the proposed residential use of ground floor
can also be achieved by using the portions of ground floor presently in
possession of respondent/landlady. However the same has not been done.
15. I, even otherwise am of the view that the intent of the
respondent/landlady to convert authorised commercial portions of the
property, capable of yielding business or rental income much more than from
residential portions, and which is controverted by the petitioner/tenant, is
such which is required to be tested by cross-examination of the
respondent/landlady. Though undoubtedly the landlord has absolute
discretion and choice in the matter but when the choice exercised by landlord
is contrary to the normal, prudent human conduct and behaviour and which
RC.REV.385/2017 Page 3 of 5
choice landlords are ordinarily not known to make, in my view, the Courts
are certainly entitled to ask the landlord to prove/establish the basis of such
choice. I am unable to find any judgment to the effect that the
choice/selection of the landlord is to always prevail, at the stage of leave to
defend, howsoever whimsical and unbelievable and extraordinary it may be.
If however after trial, it is so established, certainly such choice/selection will
be respected and eviction order will follow. This is more so when
respondent/landlady already has some shops on the ground floor in her
possession and which can be put to immediate residential use if of emergent
nature. Else, notice can be taken of the fact that use of shops, without any
ventilation and opening only in a busy market, for residential use is
improbable if not impossible. To give into such demands of the landlord,
without even giving an opportunity to the tenant to cross-examine the
landlord, by denying to the tenant leave to defend, would in my view amount
to permitting the landlord to evict the tenant as and when the landlord
desires, and to prevent which the Rent Acts were enacted.
16. I am also of the view that when the pleaded requirement of the
respondent/landlady admittedly cannot be met/satisfied without
reconstruction of premises and without converting a commercial premises
into residence, unless a strong case based on material on record or
circumstances is made out, a case for grant of leave to defend would be made
out because the Act otherwise provides for eviction, under Section 14(1)(g)
thereof, on the ground of requirement of premises by landlord for building or
rebuilding or making substantial additions/alterations and which works
cannot be carried out without the premises being vacated. However, neither
is the summary procedure under Section 25B applicable to such ground of
RC.REV.385/2017 Page 4 of 5
eviction nor is the landlady entitled to invoke the same without satisfying the
Rent Controller that the proposed construction will not radically alter the
purpose for which the premises were let or that such radical alteration is in
public interest and that the plans and estimates for such reconstruction have
been properly prepared and that necessary funds for the purpose are available
with the landlord. Per Section 20, the tenant in such cases has option of re-
occupying the premises.
17. The learned ARC, in the impugned order, is not found to have given
due consideration and weightage to the said facts and to the improbability of
conversion of commercial premises into residential.
18. The petition accordingly succeeds; the impugned order is set aside and
the application of the petitioner for leave to defend is allowed and the
petitioner is granted leave to defend the petition for eviction.
19. The petitioner to file written statement with advance copy to the
counsel for the respondent/landlady within 30 days of today.
20. The file of the eviction petition is restored to its original position.
21. The parties to appear before the ARC on 11th October, 2017.
22. The petition is disposed of.
No costs.
Copy of this order be given dasti.
RAJIV SAHAI ENDLAW, J.
AUGUST 29, 2017 bs..
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