J.K. Saxena vs Shri Madan Lal Khurana
1998 Latest Caselaw 792 Del

ORDER

C.M. Nayar, J.

1. The present petition is directed against the judgment dated April 22, 1992 passed by Shri S.N.Gupta, Additional Rent Controller, Delhi.

2. The petitioner sought an eviction of the respondent under Section 14(1)(e) read with Section 25-B of Delhi Rent Control Act (hereinafter referred to as 'the Act') on the ground that the respondent is a tenant under the petitioner in respect of two rooms, one kitchen, one bath room, one toilet and one verandah in property bearing No. B-54, C.C.Colony, Rana Pratap Bagh, Delhi on a monthly rent of Rs.175/- since 1973. The petitioner is owner of the premises in dispute let out for residential purposes and requires the same for use as a residence for himself and his family members dependent upon him and he has no other suitable residential accommodation and has since retired as Principal from Delhi Administration in October, 1988. It was further stated that petitioner is a qualified Homoeopath and after retirement has started giving free Homoeopathic medical advise to patients and he has to treat the patients at his residence. He has no separate accommodation for clinic and his family consists of himself, his wife, one son and his parents-in-law who have shifted to Delhi two years prior to the date of filing of the petition. They have no other place of residence in Delhi and are,therefore, dependent upon the petitioner for that purposes. The accommodation which is presently with the petitioner is shown in green colour in the site plan which consists of one drawing room, one other room, one kitchen, one toilet and one bath room on the ground floor and as per his requirement the accommodation is not sufficient and the petitioner needs a separate room for his son, separate drawing-cum-dining room and separate room for himself and his wife.

3. The respondent filed an application for leave to defend which was allowed and he as a consequence was permitted to file the written statement. In the written statement it is stated that the petitioner is not the owner of the premises in dispute and he does not require the same for his bona fide requirement and the malafide of the petitioner is apparent from the fact that the petitioner has called his mother-in-law as well as his father-in-law from Kota to Delhi only to create a false ground of eviction whereas they are permanent residents of Kota where their son and other family members are residing and they have also got their own house there.

4. Replication was filed and the averments made in the petition were reiterated. The plea for application of the provisions of Section 14C was considered by the learned Rent Controller and the following finding was recorded:

"Section 14C of the Act :

7. The learned counsel for the petitioner has contended that the petitioner is a retired employee of the Delhi Administration and accommodation with him is not sufficient and as such he is entitled to an eviction order under section 14C of the Act. In this regard I find that admittedly the petitioner is having three rooms, two kitchen, two WCs etc. in the property in dispute and sufficiency and/or insufficiency of accommodation and the size of the family members of the petitioner is not to be gone into in a petition under section 14C of the Act. Such like facts also cropped up before the Hon'ble High Court of Delhi in titled Madan Lal Lamba Vs. Tarlok Singh Sehgal in which it was held that 'where a retired Govt. employee is in possession of an independent dwelling unit then he is not entitled to file a petition under section 14C of the Act. It was further held that the Rent Controller in a petition under section 14C of the Act is not entitled to take into consideration the size of the family of the landlord and sufficiency and insufficiency of accommodation in his occupation because those considerations can prevail only in an eviction petition under clause (e) of the proviso to Section 14(1)of the Act when the landlord pleads that he bona fide requires the premises for his own residence or his dependent family members, etc. It was further held relying upon the decision in Narain Khaman's case decided by the Hon'ble Supreme Court that the landlord is not entitled to file a petition under section 14C of the Act.

8. In the present case also I find that the petitioner is in occupation of one drawing room, another room, one kitchen, one toilet and one bath room on the ground floor and one room and kitchen on first floor and the present requirement shown in the petition by the petitioner is that of additional requirement qua the petitioner. If the petitioner require any accommodation for his additional need, his remedy lies under Section 14(1)(e) of the Act and the petitioner should agitate his requirement before the court u/s 14(1)(e) of the Act and not under Section 14C of the Act. It is relevant to mention here that the said judgment of Madan Lal Lamba, as referred above, was subsequently followed by Hon'ble High Court of Delhi in a subsequent Civil Revision petition No.575/91 entitled Tara Chand Vs. Santokh Singh which was decided on August 19, 1991.

9. In view of my discussions above, the petition under Section 14C of the Act is not maintainable and as such the same is rejected as not maintainable."

5. The learned counsel for the petitioner has not addressed any arguments with regard to the application of the provisions of Section 14C of the Act. Therefore, it will not be necessary to go into that question.

6. The learned Rent Controller held the petitioner to be the owner/landlord of the suit property. The purpose of letting was proved to be residential. With regard to the plea that the petitioner does not possess other reasonably suitable residential accommodation, it was held that the petitioner does not have any other residential suitable accommodation at Delhi.

7. The bonafide requirement as co-related to the family of the petitioner was next considered. It was held as follows:

"Thus, the parents in laws of the petitioner are not even economically dependent upon the petitioner for their residence and they have their own separate kitchen and also a separate ration card. Under the circumstances I find that the parents in laws of the petitioner who have only come to live with the petitioner one year prior to the filing of the petition and were not accustomed to live with the petitioner, cannot be said to be the family members of the petitioner and the requirement qua them cannot be taken into consideration while deciding the requirement of the petitioner.

It is admitted case of the petitioner that his family only consist of himself, his wife and an adopted son who is only aged 9 years at present. It is also admitted case of the petitioner that he has two big rooms besides kitchen, WC, miani and covered verandah, open space on the ground floor and one big room, kitchen, WC, terrace on the first floor. Thus, the petitioner has three big rooms, in his occupation besides miani, two WCs and two kitchens. The petitioner has only one adopted son aged about 9 years and, thus, the petitioner can use one room for his drawing room purposes and the other room for himself and his wife and third room for his son and the miani can be used for store purposes. The petitioner has admittedly two WCs and two kitchens also and, therefore, he has sufficient accommodation with him for his requirement and that of his family members dependent upon him."

In view of the above, the petition was rejected.

8. The learned counsel for the petitioner has contended that the Rent Controller has committed an error of law in not appreciating the settled law that the landlord is the exclusive judge of his requirement and it will not be open for the respondent/tenant to dictate the way he should live. The admitted facts are that the petitioner is a retired Government servant and is a qualified Homoeopath. The Rent Controller has failed to go into the question of sufficiency of the accommodation of the petitioner and has based his finding on conjectures despite having held that the petitioner does not possess any other reasonably suitable residential accommodation.

9. On the other hand, the learned counsel for the respondent has argued that the concept of family will not include the father-in-law and mother-in-law. Therefore, the plea that father-in-law and mother-in-law of the petitioner are residing in the same premises is of no consequence. He has relied upon the judgments reported as Nanak Chand Vs. Tara Devi , Shri B.Dev Vs. Dr.Amar Chand Narula and others 1971(3) Rent Control Reporter 363 and Prabhakar Raghunath Dixit Vs. B.S.Kothare 1974 All India Rent Control Journal 54.

10. It is next contended that there is limited scope of interference in exercise of revisional powers of this Court and the High Court is merely to examine the records in order to satisfy itself that the decision of the Controller is "according to law". The High Court, however, will not reappreciate the evidence and sit in judgment over findings of fact arrived at by the Controller. The High Court cannot also interfere merely because on the same evidence, it is likely that it may come to a different conclusion. In other words, the High Court will not be justified in interference with the plain finding of fact. Reference is made in this regard to the judgment of this Court reported as M/s Jagatjit Industries Ltd., New Delhi Vs. Rajiv Gupta .

11. It is correct that the findings of the Rent Controller are not ordinarily interfered with. However, when an eviction is pleaded on the question of bona fide requirement and material considerations have been overlooked in assessing the need, it can be termed as material irregularity and the Court will be justified in interfering in revision to rectify that mistake. It is also necessary to decide the bona fide requirement objectively on evidence and the Court cannot overlook the basic criteria to determine the same. Reference may be made to the judgment of this Court as reported in Uma Rani Vs. Vinod Kumar Dubey .

"8. It is contended by the learned counsel for the respondents that the finding of the Rent Controller are pure findings of fact and,while exercising revisional jurisdiction they should not be interfered with. The findings of fact arrived at by the Rent Controller are ordinarily not interfered with but if it is found that there has been some material irregularity in the order of the Rent Controller then the court would be justified in interfering with such an order. In the present case,while deciding the eviction applications, the Rent Controller did not consider the status and background of the family, nor had he taken into consideration the need of family, he also overlooked the health of the landlady which required additional accommodation only on the ground floor. The Rent Controller also did not take into consideration that the court has held in Krishan Kumar's case (supra) that the landlord was entitled to ask for one room for each child and in Shri Krishan Chand Chopra Vs. Shri Satya Paul Chaddha and another, 1974,R.C.R. 578 it was held that the requirement of the landlord and his family of having a separate room for dining and sitting could not be termed as whimsical or fanciful."

12. In the present case, the family of the petitioner comprises of himself, his wife and a son who was six years old at the time of filing of the petition. It is also not denied that the parents-in-law of the petitioner moved in the premises about two years prior to the date of filing of the petition and since they did not possess any other residence in Delhi they started living in the accommodation as provided by the petitioner. It cannot be disputed that ordinarily such relations cannot be treated as dependent on the petitioner. However, in the present case, they are living in the accommodation as provided by the petitioner till date. At best the petitioner can evict them by lawful means. They cannot be turned out from the premises without following the due process of law. The close relationship exists between the petitioner and his father-in-law and mother-in-law and it cannot be denied that at the time of filing of the eviction petition as well as at the present juncture they are dependent upon the petitioner for their residence. In this background the averment that they have been specifically brought from Kota to live with the petitioner to create a false requirement of bona fide need is of no consequence and this plea of the respondent is liable to be rejected.

13. The learned Rent Controller has failed to take into consideration the present status of accommodation which the petitioner is possessed of and has merely stated on the basis of settled law that father-in-law and mother-in-law cannot be treated as his dependents as such relations do not form part of the family. However, the concept of "family" is not that rigid as to always exclude such relations from the family in as much as there can be genuine cases where people in that category also require help in their old age. The learned counsel for the respondent has not denied that the father-in-law and mother-in-law of the petitioner have continued to live in the premises as given to them by the petitioner for the past many years. Therefore, it will be illogical to exclude the accommodation in their possession while determining the bona fide requirement of the petitioner. This Court in the judgment reported as R.K .Bhatnagar Vs. Smt.Sushila Bhargava and another clearly defined the concept of the "family". Operative portion of paragraph 8 of the judgment reads as follows:

"However, the concept of family is not that rigid as to always exclude the married daughters from the family of their parents inasmuch as there can be genuine cases where married daughters are in fact living with their parents for one reason or the other and they may be said to be dependent on their parents for residential accommodation. It is now well settled that the expression "family" has to be interpreted reasonably and fairly giving due regard to the social, religious and economic conditions of life in our country as also peculiar circumstances of each case. As held by a Division Bench of this Court in Gobind Dass Vs. Kuldip Singh, , an extended meaning is to be given to the word "family". Observed the Division Bench:

"The word "family" has not been defined in the Act and we feel advisedly so. The concept of what constitutes family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong."

14. The petitioner, admittedly, is a retired principal from Delhi Administration and is a qualified Homoeopath. It is pleaded that he also gives advise to patients free of cost and will require some space for running his clinic. This is not a very far-fetched and erroneous demand and has to be considered to assess the requirement and need for an additional room. The learned Rent Controller has erred in not considering the question of sufficiency of accommodation by taking into account the actual accommodation which is presently available to the petitioner. There can also be no mathematical assessment of the requirement to determine the genuine and bona fide need. The premises which are available with the petitioner and his family are not that spacious that it will satisfy the need in the facts and circumstances of the present case. In view of the above reasons, this Court is empowered to interfere in the present petition as the basic criteria for assessing the bona fide requirement has been ignored by the Rent Controller. The petitioner is possessed of a very small accommodation which cannot be held sufficient for his requirement.

15. For the above reasons, the present petition is allowed and the judgment dated April 22, 1992 passed by the Rent Controller is set aside. The respondent is, however, granted six months time from the date of this order to vacate the premises. There will be no order as to costs.