Shri Om Prakash Bajaj vs Shri Chander Shekhar
2003 Latest Caselaw 100 Del

JUDGMENT

Mahmood Ali Khan, J.

1. By this common order, these two civil revision petitions bearing nos. 179/01 and 591/01 will be disposed of as they are directed against orders dated 21.11.2000 and 13.2.2001 passed by an Additional Rent Controller.

2. Briefly stated, the facts are that Om Prakash Bajaj (hereinafter called the landlord) filed a petition for eviction of Chander Shekhar (hereinafter called the tenant) from the premises of house no. R-706, Block-R, New Rajinder Nagar, New Delhi under clauses (c), (e) and (h) of Section 14(1) of Delhi Rent Control Act (in short the Act). After recording the evidence, the Controller by order dated 16.9.1999 dismissed the petition. The landlord challenged this order in a civil revision petition no. 1062/99 before this court. The revision petition was disposed of by order dated 19.9.2000. The operative portion of the order is as under:-

"Accordingly, I set aside the impugned order to this extent. The learned Additional Rent Controller will take into consideration the nature of the premises on the second floor and decide if the need of the petitioner could have been met if he had occupied the second floor."

3. The learned Additional Rent Controller after hearing the parties disposed of the question raised above by order dated 21.11.2000. The relevant extract of the order is as under:-

If the petitioner has suitably explained reason of his not occupying the accommodation at the second floor the same has to be be accepted. The finding is retained accordingly on the question remanded back that the nature of the premises at the second floor is such that the need of the petitioner could not have been met if he occupy the same."

4. Not satisfied, the landlord filed an application for review of the order dated 21.11.2000, aforesaid, and passing an eviction order. The application was decided by the Controller by order dated 13.2.2001, which reads as under:-

" I have given my thoughtful consideration to the submissions made by the parties. Though the submissions made by ld. counsel for the petitioner appears to be plausible on the face of it because even after having a favorable finding on the question remanded back the petitioner is deprived of the eviction order. At the same time it cannot be ignored that the only question remanded by the Hon'ble High Court to this court was a limited question requiring this court to record a finding on the same. It is a qualified order not requiring this court to pass an eviction order. Accordingly I do not find any need to review the order dated 21.11.2000. Application is dismissed. Petitioner is at liberty to get the order clarified from the Hon'ble High Court. File be consigned to record room."

5. The landlord is aggrieved by this order of the Controller and has assailed it in the civil revision petition no. 179/01. At the same time the tenant also felt aggrieved by the finding recorded by the Controller in the order dated 21.11.2000 that the accommodation on the second floor was not suitable and will not satisfy the need of the landlord. He filed a civil revision no. 591/01 for challenging it.

6. I have heard counsel for the parties at length and have also gone through the record.

7. First the civil revision no. 591/01 filed by the tenant may be taken up for consideration. If this revision petition is allowed and the finding recorded by the Controller dated 21.11.2000 are reversed, the revision petition filed by the landlord would become redundant.

8. From the perusal of the order dated 19.9.2000 by which this court had remanded the question for consideration it is clear that this court did not find merit in the petition of the landlord so far it has assailed the order of the Controller whereby he had rejected the eviction petition under clauses(c) and (h) of Section 14(1) of the Act. Before the court the question raised was as to whether the requirement of the landlord was genuine and bonafide in view of the twice letting of the second floor premises which consisted of two rooms accommodation during the pendency of the eviction petition. The short question that the Controller was mandated to decide was about the nature of the accommodation which existed on the second floor and then decide if the need of the landlord would be satisfied had the said accommodation been occupied by him.

9. The civil revision no. 1062/99 was filed by the landlord against an oder of Additional Rent Controller dated 16.9.1999 by which the eviction petition filed by the landlord under clause (e) of Section 14(1) of the Act was dismissed on merit. This court admitted the revision petition on 19.9.2000 and remanded a short question for decision by the Controller. The question remanded was as to whether the accommodation which became available to the landlord on second floor during the pendency of the eviction proceeding was reasonably suitable for occupation and satisfied the need of the landlord for additional accommodation for which the eviction petition on the ground of bonafide personal need was filed under clause (e) of Section 14(1) of the Act. The property in question comprised of three floors. The ground floor was in occupation of the landlord. The first floor was occupied by the tenant from which his eviction was sought. The second floor of the property was also with the tenant. During the pendency of the eviction proceeding, the second floor tenant vacated it. Instead of occupying that accommodation, the landlord re-let the same. The contention of the tenant, therefore, was that the need of the additional accommodation was not bonafide and that he was seeking the eviction for malafide and extraneous reasons for he failed to occupy the second floor accommodation which would have made his requirement for additional accommodation for the use of his married son and his family satisfied. In accordance with the finding of the Controller in his order dated 16.9.1999, the family of the landlord comprised of his wife and the family of a married son. In para-16 of the said judgment examining the requirement of the landlord, the Controller observed that the petitioner and his wife needed at least one bed-room for their own use and their son also needed at least two more rooms. He also found the requirement of the landlord for one room for use by his guests who occasionally dropped in and another room for use as drawing-cum-dining room was also genuine and not malafide. The Controller also found that the landlord was residing on the ground floor of the property and he was in possession of three bed-rooms, one drawing-cum-dining room and also a covered corridor which he was using as a living room, besides to the latrine, kitchen, bathroom and pooja room. According to the Controller the corridor was not a regular living room so the landlord cannot be forced to use it as a room. He held that the landlord was in possession of four rooms in all besides latrine, kitchen and bathroom etc. on the ground floor of the property. The landlord's son was a chartered accountant. He needed one room for use as an office which need of the landlord cannot be said to be malafide for any reason. The Controller by appraising the evidence produced by the parties held that the landlord bonafidely required at least six rooms for the use of himself and the members of his family dependent upon him for residence. But he was in possession of four rooms only. In other words, the landlord required two more rooms. However, he dis-allowed the eviction of the tenant from the first floor premises under clause(e) of Section 14(1) of the Act on the ground that after the filing of the eviction petition, the second floor of the property which consisted of two rooms, latrine, kitchen, bathroom etc. was vacated by another tenant on 01.10.1991. Instead of occupying it for the use of himself and his family, the said accommodation was let out to Mrs. Sushila in June'1992. After Mrs.Sushila vacated it, another tenant Mr. Rao was inducted in it by the landlord in early 1996. The Controller held that non-occupation of the second floor by the landlord and his family and its re-letting twice during the pendency militates against the bonafide of the need of the landlord. He, accordingly, rejected the eviction petition.

10. Before the court it has not been denied by the petitioner that the second floor accommodation comprised of two rooms which were larger in size than the rooms which are on the first floor. At the same time it has also not been disputed that the total accommodation at the first floor, in occupation of the tenant, was larger in size than the accommodation available to the landlord at the second floor. Certain other undisputed facts may also be noticed here. The landlord and his wife are old persons. The evidence led by them which has been, in fact, referred to by the counsel for tenant, is that on account of old age and health they are unable to climb the stairs. They cannot climb the stairs up to the first floor or the second floor. The son of the landlord and the family of his son, on the other hand, have no such physical disability to go up to the second floor by the said staircase. The question that arose for consideration before the Controller was whether the landlord by letting out second floor accommodation when it fell vacant twice had forfeited his right to claim the eviction of the tenant from the first floor under clause(e). In other words whether it showed that the need which the landlord projected in the eviction petition was not stemming from his bonafide requirement but was actuated with malice or some extraneous consideration. Counsel for respondent referring to the judgment of this court in C.M. Mehta Vs. M.P. Bhalla 31(1987) DLT (SN) and argued that the expression bonafide requirement used in clause(e) of Section 14(1) of the Act means that the requirement of the landlord was genuine and his claim was not motivated by extraneous consideration. Mere wish or desire of the land was not sufficient and that he must have a genuine need.

11. It is now well settled that while considering the eviction of the tenant on the ground of bonafide personal need of a landlord the court has to keep in mind that the landlord's requirement of the tenanted premises from which the eviction is sought, is not motivated by extraneous consideration, whimsical or mere wishful. The need of landlord should be sincere, real, genuine and honest desire. The Controller has to bear in mind the paramount consideration is the requirement of the landlord to be bonafide. The landlord is the best judge to decide as to which of the two accommodations available to him was required by him for use of himself and his family and his requirement is only subjective to its being bonafide and not malafide. In the instant case the landlord had first floor and the second floor accommodation. Both were with the tenant. He has to choose which of the premises were required by him for himself and his family. The tenant has no right to ask the landlord to occupy a particular accommodation or evict another tenant and not him. He cannot compel the landlord to occupy an accommodation which the landlord does not find reasonably suitable and is not willing to occupy. Of course, if some other reasonably suitable residential accommodation is available to the landlord and it is not occupied by him, his petition for eviction under clause (e) of Section 14(1) of the Act against the tenant must fail. In the instant case the additional accommodation which became available to the landlord was on the second floor. Second floor was in occupation of the tenant. No eviction petition was filed by the landlord for eviction of the tenant from that premises. The eviction petition was filed against the first floor tenant. The children and the son of the landlord are growing. The landlord and his wife both are very old and sick person. They need constant care and attention of his son and his family. No doubt the second floor is also part of the same property but the first floor accommodation which the landlord wants tenant to vacate is nearer to the ground floor. This apart the second floor has smaller accommodation as compared to the accommodation which would become available to the landlord upon eviction of the tenant. Suitability of the alternative premises cannot be determined by mere counting the rooms. But it has to be determined keeping in view the totality of the facts, the nature of need pleaded by the landlord, his and his family's standard and style of life and the purpose to which the landlord wants to actually put it after coming it into possession. The landlord has right to choose which of the accommodation is required by him for himself and the members of his family. Once it is held that his need for additional accommodation is genuine, only reason for disallowing his claim to the premises chosen by him would be if it could be held that the alternative accommodation which is available to him for occupation was reasonably suitable. The wife, son and son's wife and children are the members of the family of landlord whose need of accommodation is the need of the landlord. There is no dispute about this fact. His requirement is only qualified by its genuineness and bonafide. There is no material or facts brought on record by the tenant to justify its finding that the eviction petition filed by the landlord against him was for malafide reasons. The finding of the Controller that the landlord needed at least two more rooms bonafide has not been questioned on behalf of the respondent. The main thrust of the argument advanced on behalf of the respondent is that the two rooms became available to the landlord at the second floor which instead of occupying it himself were re-let twice by the landlord which showed that the eviction petition was motivated. In fact, the Controller did not decide that the total requirement of the landlord was two rooms. What he held was that at least two more rooms were needed by the landlord bonafide.

12. The Supreme Court in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta on the question laid down as under:-

13.A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence of pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. 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 need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.

14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of clause(e) of sub-section(1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the Court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the Court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the land has succeeded in demonstrating objectively to exist. Needless to say that an alternate 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. Convenience and safety of the landlord and his family members would be relevant facts. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come".

13. In another judgment Meenal Eknath Kshirsagar (Mrs.) Vs. Traders & Agencies and another (1996) 5 SCC , the Supreme Court in para 13 examined Prativa Devi Vs. T.V. Krishnan , and observed as under:-

"13. `The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It no concern of the courts to dictate to the landlord how, and in what manner, he live or to prescribe for him a residential standard of their own......There is no law which deprives the landlord of the beneficial enjoyment of his property".

14. It is further held therein what is to be considered is not merely the availability of alternative but also whether the landlord has a legal right to such accommodation.".

14. A landlord, who did not want his tenant to occupy the premises may terminate the tenancy or upon efflux of time stipulated in the lease ask the tenant to quit in accordance with the provision of Transfer of Property Act. The Rent Acts have put a clog on this right. The landlord cannot now evict the tenant on his whims and fancy. He has to satisfy the Controller about existence of one or more of the ground of eviction specified in Section 14(1) of the Act. Right of landlord is not absolute but curtailed by various provisions of Rent Acts. Crux of the ground of eviction under clause (e) on which eviction of the petitioner is sought is that the requirement of the landlord for occupation of the tenant premises must be bonafide. When a landlord asserts that he requires the suit premises for her own residence the Rent Controller shall not proceed on the presumption that the requirement is not bonafide. Once the bonafide of the requirement of the premises for occupation is established by the landlord the tenant cannot ask the landlord how else he adjust without disturbing his own possession in the suit premises. Therefore, it will be unnecessary to try to ascertain as to how else the landlord could have adjusted himself at another place. Examining this case in hand on the touchstone of the above proposition of law, I find myself in agreement with the finding of the Controller that the premises at second floor was not reasonably suitable and would not have satisfied the need of the landlord for additional accommodation.

15. For all these reasons, I do not find any jurisdictional infirmity, illegality or irregularity in the exercise of jurisdiction by the Additional Rent Controller in passing the order dated 21.11.2000 impugned in the revision petition no. 591/01. The revision petition filed by the tenant having no merit fails. It is dismissed.

16. Adverting to the civil revision petition filed by the landlord, suffice to say that the learned Controller has not read the order of this court dated 19.9.2000 in correct perspective. Operative portion of the order, which has been reproduced above, showed that the order of dismissal of the eviction petition on the ground of bonafide under clause (e) of Section 14(1) of the Act was set aside. The Controller had to re-consider his finding whether the accommodation available at the second floor which became available was reasonably suitable to satisfy the need of the landlord. The only reason for which the eviction petition on the ground of bonafide personal need of the landlord was dis-allowed by the Controller impugned in civil revision no.1062/99 was the question of non-occupation of the second floor by the landlord and its re-letting twice. It is manifestly clear from the order dated 19.9.2000 that the order by which the petition under clause (e) of Section 14(1) of the Act was rejected was set aside. In other words, the Controller after deciding the question for which the case was remanded was to consider afresh whether an eviction order may or may not be passed. Learned Controller committed error of jurisdiction, illegality and material irregularity in exercise of jurisdiction by refusing to pass an order of eviction, after recording the finding on the question for which the case was remanded, in favor of the landlord. He clearly erred in declining to pass the eviction order pursuant to the finding recorded by order dated 21.11.2000. The order dated 13.2.2001 is not unsustainable in law.

17. Result of the above discussion is that civil revision no.179/01 filed by the landlord is allowed. The order of eviction of the tenant Mr.Chander Shekhar from the first floor of the premises no. R-706, First Floor, New Rajinder Nagar, New Delhi is passed under clause (e) of Section 14(1) of the Act. The tenant is allowed six months time to vacate the premises and handover vacant, peaceful and physical possession to the landlord on the expiry of the above said period. But in the facts and circumstances of the case, the parties are left to bear their own costs. The civil revision No. 591/2001 is dismissed.

18. Both the petitions are disposed off accordingly.