Ajit Walia vs Jagdeep Binepal
2004 Latest Caselaw 607 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition is directed against the order dated 1.9.1998 of the Additional Rent Controller, Delhi in petition no.134/95 whereby the learned Additional Rent Controller has dismissed the petition under Section 14(1)(e) r/w Sec.25-B of Delhi Rent Control Act.

2. When the matter came up for hearing today nobody appears on behalf of the respondent. The case of the petitioner in brief as has been set down in the judgment under challenge is as follows:-

" .....that he is owner of the premises in question and respondent is his tenant vide registered lease deed in respect of the said entire demised premises for residential purposes since 15-11-1986. It is averred that the petitioner is presently residing at Ooty where he is working as Deputy Manager with M/s Hindustan Photo Films Ltd' that he and his wife are keeping indifferent health as the climate at Ooty are not suitable to them and for that reasons he wants to shift to Delhi and the premises in question are bonafide required for residence for him and his family members and dependents upon him and he and any members of his family dependent have no other reasonably suitable residential accommodation at Delhi except the suit premises. It is further stated that father of the petitioner has left behind a residential house bearing No.57F, Kamla Nagar, Delhi vide his registered Will dt.26-5-93 in favor of his wife Smt. Shanti Devi (mother of the petitioner) for her life time and after her death to the petitioner and his other son Sh.Ajay Walia in equal share and father of the petitioner has died on 3.8.1995; that accommodation in Kamla Nagar house comprises of one drawing-dining, one bed room, a garage being used as a room, parchhatti, kitchen, bath and said house is in occupation of his mother and brother Ajay Walia by virtue of the Will and the petitioner cannot live in that house as a matter of right, during the life time of his mother and even otherwise the accommodation in said house is insufficient for the petitioner.

Summons of the eviction petition were sent and served upon the respondent-tenant under Schedule III of the DRC Act. The respondent-tenant pursuant to the said summons appeared and filed his application u/s 25B(4) of DRC Act Along with his affidavit seeking permission to leave to contest the eviction petition and his said application was allowed by the ld. predecessor of this court vide his order dt.21.5.96 and listed the case for filing of the WS on 8.7.96.

The respondent-tenant in his WS has stated that the premises in question were let to the respdt. by Sh. Jagjit Singh Walia by registered Lease Deed. However, the respdt. denied the allegations relating to acquisition of property by the petitioner from DDA for want of knowledge. It is, however, not denied by the respdt that petitioner is working in M/s Hindustan Photo Film Ltd, Indu Nagar, Ooty and the petitioner is residing Along with his family in Ooty, Tamil Nadu. It is denied that the petitioner wants to shift to Delhi as alleged. It is also denied that the petitioner requires the premises in question bonafide or that the petitioner or any other member of his family has no other reasonable suitable residential accommodation in Delhi, It is added that petitioner has no intention of living in Delhi and further-more the accommodation available with the petitioner at house No.F-57 Kamla Nagar, Delhi, which house is in joint ownership of the petitioner and his brother, is more that sufficient for his residential requirement but the petitioner has no intention to live in Delhi."

3. The learned Additional Rent Controller formulated following four questions that require adjudication:-

1.that the petitioner is the owner of the premises in question.

2. that the premises in question were let out to the respondent/tenant for residential purposes only.

3.that demised premises are required by the petitioner bonafide for his residence and for residence of his family members and dependents upon him; and

4. that the petitioner or any members of his family dependent upon him does not have any other alternative suitable residential accommodation at his disposal at Delhi except the suit premises.

4. As regards question number 1, 2 and 4, the Controller decided in favor of the petitioner holding that the petitioner was the owner and landlord of the premises in question and that the same were let out for residential purposes. He also held that the petitioner had no other suitable accommodation. However on the question of bona fide requirement the Controller held that the petitioner who was working at Ooty with a firm -M/s Hindustan Photo Films Ltd. has not placed any document on record to show that he and his wife are keeping indifferent health or that they have any intention of shifting to Delhi.

5. Counsel for the petitioner contends that the reasoning of the learned Additional Rent Controller in his appreciation of bona fide requirement of the petitioner is faulty. He submits that the petitioner has categorically stated in his pleadings that he is a Deputy Manager and is drawing a salary of 7,000/- p.m. and the family of the petitioner consists of himself, his wife nd two children, being a son of 11 years of age and studying in 7th Class and a daughter of 9 years of age and studying in 5th Class. The petitioner and his wife are keeping indifferent health as the climate at Oooty are not suitable to them and for the reasons he wants to shift to Delhi. The employer of the petitioner will have no objection to the transfer of the petitioner to its branch office at Delhi. Even otherwise, the petitioner wants to shift to his own house at Delhi. Even otherwise, the petitioner wants to shift to his own house at Delhi and in case his transfer is not allowed, he will take voluntary retirement from his services and will settle at Delhi. The petitioner is Ph.D in Chemistry and earlier was a Professor in Atma Ram Sanatan Dharam College, in Delhi.

6. In his deposition the petitioner has stated :-

"At present I am working with M/s Hindustan Photo films at Ooty as Dy. Manager. As I and my wife having indifferent health I want to shift to Delhi and to live in my own house i.e. Premises in dispute. My employer has a breach in Delhi and posting can be possible at branch office at Delhi and in case the transfer is not allowed, I will take vol. Retirement from my service. I am Ph.D in Chemistry. I was a Lecturer in Atma Ram Sanatan Dharma College. After my retirement I will pick up the teaching work again. At present I am drawing a salary of Rs.8,000/- from my present employer. I have two children, myself and my wife constitute my family. My son Chirag Walia is 13 years of age is studying in 7th Class and she is 11 years of age. I need one room each for my children, one room for myself and my wife. I also need separate drawing and dining room. I have no any residential accommodation with me either at Ooty or at Delhi."

7. I have heard counsel for the petitioner and have perused the judgment under challenge as also the record of the case. From a bare reading of the petition as also the depositions, I find that the reasoning of the Controller is faulty and that the bona fide needs could not be tested only on the ground that no document in support of the indifferent health of the petitioner has been placed on record and that no application or letter has been filed with the employer to either transfer him to Delhi or seeking voluntary retirement. Although the documents in support of health have been placed on record and were marked as B, have not been taken into consideration and even otherwise surely it is not expected that the employee will first resign before he can maintain a petition for bona fide requirement for a premises in Delhi. The Controller could not have non-suited him merely because he has not applied for premature retirement before moving a petition.

8. There are sufficient safeguards in the Delhi Rent Control Act in Section 19, where if the landlord does not occupy the premises within a period of two months from its falling vacant under the Delhi Rent Control Act, the same can revert back to the tenant. The landlord also cannot sell or part with possession to any other person for a period of three years from the date of eviction. In view of these safeguards it was not appropriate for the Additional Rent Controller to have non-suited the petitioner only on the ground that he had not tendered his resignation or has not sought transfer to Delhi before filing of the petition. The pleadings and deposition clearly makes out his bona fide need for accommodation in Delhi. There being no sufficient alternative accommodation available, I see no justification for not allowing this petition. In this view of the matter, I set aside the judgment and order dated 1.9.1998 of the Additional Rent Controller.

9. RC.Rev.1106/1998 is allowed and disposed of.