Ahmed Khan vs Nasir Khan (Since Deceased ...
2006 Latest Caselaw 2117 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner filed an eviction petition against the respondent under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) on the ground of bonafide requirement. In terms of the impugned order dated 11.2.2003 this petition was rejected.

2.In order to appreciate the contours of the controversy it is necessary to reproduce the relevant provision as under:

14. Protection of tenant against eviction. - (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:

(a)...

(b)...

(c)...

(d)...

(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation.

3. A perusal of the impugned order as well as the submissions advanced by learned Counsel for the parties show that there is no dispute that the purpose of letting was residential, the petitioner has no other alternative residential accommodation and the requirement of the petitioner is bonafide. The only controversy relates to the aspect as to whether the petitioner can be said to be the owner of the property.

4. It may be noticed that the property in question is house No. 3610, Katra Dina Beg, Bazaar Lal Kuan, Delhi-110006. The property was purchased by the petitioner and one Shri Daulat Ram in a public auction on 25.9.1971 and was thereafter partitioned between the co-owners by an Agreement dated 6.10.1971. In terms of the partition agreement, a portion measuring 139 sq. yds. including the tenanted premises fell to the share of the petitioner. One Shri Ferozuddin S/o Shri Mohd. Ismail was the previous owner of the property in question. It was purchased by him in the year 1928 by a Sale Deed. In 1947 a declaration was sought that the property in question was a non-evacuee property and the same was granted by the order dated 1.9.1949 (exhibit AW-3/1). Shri Ferozuddin passed away on 21.9.1959. The legal heirs of Shri Ferozuddin who had migrated to Pakistan came to Indian and applied for grant of Succession Certificate for the estate of their father, which was granted by the learned Sub-Judge, Delhi on 24.5.1960 in probate case No. 407/1959.

5. In 1965 on account of the war between Indian and Pakistan, the Government of India issued a notification dated 10.9.1965 under the defense of India Rules, 1962 declaring all the properties owned by Pakistani nationals as 'Enemy Properties'. It is in view thereof that the property is stated to have vested in the custodian of 'Enemy Property' under the Enemy Property Act, 1968. (hereinafter referred to as the 'Enemy Property Act')

6. The petitioner claims to have purchased this property in court auction as per Sales Certificate AW-2/1 titled as Zahiruddin v. Peer Abdul Majid. The property was stated to have been willed by Shri Ferozuddin in favor of Peer Abdul Majid, who is stated to have become the owner of the said property. There is some dispute about the bequeath as Shri Ferozuddin was stated to have passed away on 21.9.1959 while the Will is alleged to be dated 31.12.1959.

7. The Additional Rent Controller has come to the conclusion that the property was never passed to Shri Peer Abdul Majid and thus could not be attached and sold in court auction due to embargo of Section 9 of the Enemy Property Act. It was held that the purchaser could not get a better right and title than the judgment debtor and merely because the petitioner had purchased the property in a court auction would not confer a better title on him than what was with the judgment debtor. It may be noticed that the certificate under Section 12 of the Enemy Property Act (exhibit RW-2/1) was issued only in July, 1997 but it is stated that the custodian of enemy property had staked its claim as early as in 1975 and no steps have been taken to apply to the Central Government for divesting order under Section 18 of the Enemy Property Act. It is in view thereof that the Additional Rent Controller came to the conclusion that the petitioner was not the owner of the property.

8. A material aspect to be considered is that the UDC appeared from the Land and Building Department of the custodian as AW-3 and brought the summoned record in respect of the property in question. The said witness deposed that the property had been declared as non-evacuee property by the order dated 1.9.1949 and the property had never been revested with the custodian. The witness specifically denied that the SDM of the area had been authorized to maintain the property or to receive rent in that behalf.

9. The aforesaid facts and circumstances show that the stand of the custodian itself is that the property does not vest in it. The question of dispute of ownership would arise only if the custodian was claiming the property as having vested in it and in that eventuality the matter would have to be examined as to whether a procedure had been followed for divesting the custodian of the property.

10. The petitioner is an auctioned purchaser in proceedings for auction of the property by the Court and it is thereafter that the Sale Certificate had been issued in favor of the petitioner.

11. It must also be kept in mind that the expression owner as used in Section 14(1)(e) of the said Act is used in the context of something more than merely a landlord. This view has been expressed by the Supreme Court in the judgment in Smt. Shanti Sharma and Ors. v. Smt. Ved Prabha and Ors. . The matter pertaining to the said Act and to the meaning of the expression owner under Section 14(1)(e) of the said Act is discussed and was held not to mean an owner as defined under the Transfer of Property Act, 1882. The expression owner was to be understood in the context of the background of the law and what is contemplated in the scheme of the Act, which is an enactment for protection of the tenants. A landlord is entitled under certain circumstances for an order of eviction and bonafide requirement is one such ground. It was thus held that what appears to be the meaning of the term owner is vis-a-vis the tenant, i.e. the owner should be something more than the tenant. The word owner was held to have been inspired by the definition of the word landlord as contained in Section 2(e) of the said Act. Thus the idea of ownership was held to be one of a better right to be in possession and to obtain it.

12. A perusal of the aforesaid shows that the word owner is not used by the Legislature in the context of an absolute owner. The Act provides protection for tenants and landlords are entitled to eviction only in certain specified circumstances including for bonafide requirement. The Supreme Court thus observed that the phrase owner appears to be used vis-a-vis a tenant and this would imply that the owner should be something more than the tenant. Once this test is satisfied a person claiming eviction has to only show his bonafide requirement.

13. The respondents are the tenants, they are not claiming any right in the property. The petitioner has shown, that in pursuance to the Sale Certificate issued under the authority of the Court, the petitioner has acquired title to the property. It is not for the respondent to claim that the complete title of the petitioner should be established in the present proceedings even when the custodian is not claiming any right in the property. The stand of the respondents cannot be accepted that even if the custodian is not claiming any rights in view of the payment of rent by the respondent to the SDM on behalf of the custodian the petitioner is devoid of any right to file the eviction proceedings. The eviction proceedings are not for non-payment of rent but for bonafide requirement of the petitioner.

14. In view of the aforesaid the impugned order is set aside and an eviction order is passed in favor of the petitioner and against the respondents in respect of the tenanted premises. The respondents are granted six months time to vacate the tenanted premises.

15. Petition stands allowed of leaving the parties to bear their own costs.