Delhi High Court

Budh Singh & Sons & Ors vs Sangeeta Kedia on 17 November, 2011

Author: Indermeet Kaur

$~A-49
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 17.11.2011

+         RC.REV. 453/2011 & CM Nos.20603-04/2011


       BUDH SINGH & SONS & ORS        ..... Petitioner
                    Through: Mr.G.P.Thareja and Mr.Vikas
                             Kakkar, Advocates.

                   versus


       SANGEETA KEDIA                   ..... Respondent
                    Through:         Nemo.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                  Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. Order impugned before this Court is the order dated

19.7.2011 vide which the application for leave to defend filed by

the tenant in a pending eviction petition under Section 14(1)(e) of

the Delhi Rent Control Act (hereinafter referred to as the DRCA)

had been dismissed.

2. Record shows that the present eviction petition has been

filed by the landlord and owner Sangeeta Kedia. This petition has

been filed for a bonafide requirement. The bonafide requirement

has been described in para 18 (a) of the petition. It is stated that

the petitioner is the owner and landlady of the premises. It is

stated that for herself and her family members the premises is

required bonafide for carrying on business. The petitioner is also

doing business of stitching of suits in her own name for the last

eight years. She has no other reasonable suitable accommodation

for carrying on the said business. This premises is located in a

commercial area and is suitable for the business of the petitioner;

she has no other accommodation in her name; she has bonafide

requirement for the purpose noted hereinabove.

3. The premises is comprised of a Chabutra at 1855 Chandani

Chowk, Delhi. In the application for leave to defend these facts

are disputed.

(i) The first contention raised by the petitioner/tenant

which as per him has amounted to a triable issue is

that the premises in this case are commercial

premises; purpose of letting out was commercial; as

such Section 14(1)(e) even in view of the judgment of

the Apex Court reported in 148(2008) DLT 705 (SC)

Satyawati Sharma (Dead) by LRs. Vs. Union of India. is

not applicable. His contention being that the facts of

Satyawati (supra) were peculiar to their own factual

matrix; that was a case where the premises were

residential premises and the tenant was using it for a

commercial purpose; in this scenario the Apex Court

had noted that no distinction can be drawn between a

residential and a commercial premises; in this case

the premises which were admittedly commercial had

been let out for a commercial purpose; the judgment

of Satyawati is not applicable.

(ii) Learned counsel for the petitioner has further

submitted that the Apex court in the case of Satyawati

(supra) while holding that certain part of the

provisions of Section 14(1)(e) of the DRCA is violative

of Article 14 of the Constitution of India had only in

part deleted Section 14(1)(e) of the DRCA; it is not as

if the whole provision of Section 14(1)(e) had been

deleted; submission being that this modified Section

14(1)(e) of the DRCA has to be read in the context of

the facts of that particular case only; it is a precedent

which precedent is applicable to its own factual

matrix; alternate submission being that in case this

court is of the view that this is applicable in a larger

and wider form and applicable to other cases as well,

it would amount to a legislation which the courts are

not permitted to do. In support of this submission he

has placed reliance upon a judgment of the Apex

Court reported in (2002) 4 SCC 578 P Ramachandra

Rao Vs. State of Karnataka; submission being that a

clear distinction should be made between a legislation

and a precedent; further submission being that the

judiciary is required only to interpret the law; it may

lays down guidelines and principles but it cannot in

any manner legislate. Reliance has also been placed

upon a judgment reported in AIR 2006 SC 258 State of

Orrissa & Ors. Vs. Md. Illiyas to support his

submission that it is not everything said by a judge

while giving a judgment that constitutes a precedent;

the findings in such decision i.e. the ratio alone is

applicable and the enunciation of the reason or

principle on which a question before the court has

been decided is alone binding as a precedent;

submission being that the judgment of Satyawati is

applicable to the facts of those cases only where the

premises were residential but were being used for a

commercial purpose and not in the instant case where

the premises admittedly were commercial and had

been permitted to be used for a commercial purpose.

This has raised a triable issue.

(iii) Next submission is that necessary permission under

Section 19 of the Slum Areas (Improvement and

Clearance) Act 1956 is also mandatory; that condition

also could not be waived. Judgment of Ravinder Dutt

Sharma Vs. Ratan Lal Bhargava reported in AIR 1984

SC 967 has no application to the facts of this case.

The impugned order holding that that no such

permission is required is an erroneous finding; this in

fact raises a triable issue.

(iv) The further submission of learned counsel for the

petitioner is that the landlady in her ground for

eviction has stated that the premises are required for

herself and her dependants; where the bonafide need

is for the family members and dependants the

procedure contained in Section 25 B of the DRCA is

not available and the petition under Section 14(1)(e) of

the DRCA has to be tried as an ordinary eviction

petition as it is not a „personal necessity‟.

v. Last submission of the learned counsel for the

petitioner is that there is no bonafide need of the

petitioner; the petitioner has not disclosed the place

from where she is doing her business, which was

incumbent upon her to do so; she has admittedly been

carrying on business from somewhere and the

accommodation now sought by her is an additional

accommodation; in cases based on need for an

additional accommodation the Supreme Court has

time and again reiterated that it raises a triable issue

and unconditional leave to defend should be granted.

To support this submission reliance has been placed

upon a judgment of Apex Court in S.M. Mehra Vs. D.D.

Malik, C.A. No.120 of 1990 decided on 11.01.1990 and

also upon a judgment reported in (2001) 1 SCC 255

Santosh Devi Vs. Chand Kiran CA No.412 of 2000

decided on 17.01.2000. Submission of the petitioner is

that all these are triable issues which have not been

dealt with by the Additional Rent Controller in its

correct prospective.

4. Record has been perused.

5. The Supreme Court in the case of Satyawati (supra) has

struck down a certain part of provision of Section 14(1)(e) of the

DRCA as being violative of the doctrine of equality embodied in

Article 14 of the Constitution of the India and in paras 38 and 39

they are noted herein in below:

"38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latter's right to seek eviction of the tenant from the premises let for residential purposes only.

39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e) so that the remaining part thereof may read as under :-

"that the premises are required bona fide by the landlord 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 accommodation."

While adopting this course, we have kept in view well recognized rule that if the offending portion of a statute can be severed without doing violence to the remaining part thereof, then such a course is permissible R.M.D. Chamarbaugwalla vs. Union of India (AIR 1957 SC

628) and Bhawani Singh vs. State of Rajasthan [1996 (3) SCC 105.

As a sequel to the above, the explanation appearing below Section 14(1)(e) of the 1958 Act will have to be treated as redundant."

6. It is thus clear that the discrimination on the purpose of

letting out of a premise for a residential or a non-residential

purpose has been struck down; the remaining part of Section

14(1)(e) of the DRCA (after a portion of it having been struck

down) has also been reproduced supra. It is thus clear that now

no distinction can be drawn between premises let out for a

residential purpose or a non-residential purpose where the

landlord seeks eviction on the ground of bonafide requirement as

contained in Section 14(1)(e) of the DRCA. The submission of the

learned counsel for the petitioner that this judgment is not

applicable to the facts of his case is rejected.

7. The further submission of the learned counsel for the

petitioner that the deletion of the part of Section 14(1)(e) of the

DRCA is restricted in its applicability and would apply only to

premises which were residential and had been given for

commercial purpose, as noted supra, has been rejected; the

alternate submission of the petitioner on this count is that if

section 14(1)(e) of the DRCA is to be read in wider perspective it

would amount to legislating which the Courts are not permitted to

do; and for this proposition he has placed reliance upon a

judgment of the Supreme Court reported in P Ramachandra Rao

(supra); this argument is meritless. The powers of the

constitutional authority to declare as repugnant a part of a statute

which is violative and offending to the constitutional provisions is

an unbridled power of the High Court and Supreme Court and by

striking down a part of the provision of the offending statute it in

no manner amounts to legislating as is the contention of the

petitioner. This argument is not only ill founded but is hopelessly

misguided. The Apex Court in the case of Satyawati (supra) had

in fact quoted with approval its earlier pronouncements on this

issue in the judgments reported in AIR 1957 SC 628 R.M.D.

Chamarbaugwalla vs. Union of India and 1996 (3) SCC 105

Bhawani Singh vs. State of Rajasthan. As such the judgments of P

Ramachandra Rao and Mohd. Illiyas (supra) do not come to the

aid of the petitioner.

8. The Supreme Court in Ravi Dutt Sharma (supra) had held

that the special procedure contained in Chapter III-A as

introduced in the Rent Act by the amendment Act 1976 makes it

no longer a requirement of the landlord to obtain a permission

from the Competent Authority under Section 19 of the Slum Area

(Improvement and Clearance) Act, 1956 before instituting an

eviction petition under Section 14(1)(e) of the DRCA. The

submission of the learned counsel for the petitioner on this score

is also accordingly rejected.

9. The eviction petition has also clearly and categorically

disclosed the bonafide need of the landlady Sangeeta Kedia. It

has come on record that she is carrying on business since the last

eight years and this has been supported by her income tax returns

which had been filed along with the eviction petition as also the

bills supporting her submission that she is carrying on the

business of stitching of suits and other apparel. There is no doubt

that on this eviction petition it has not been mentioned from

where she is carrying on the said business; her need for the

present premises (which is a shop measuring 9 feet x 21 feet on

the ground floor of premises bearing No.1855, Chandani Chowk,

Delhi) is for running the business of ladies suits and garments

which she is admittedly carrying on and is supported by her

documents as aforenoted. In this factual scenario the submission

of the tenant that the petitioner is only a housewife and is not

doing any business is negatived. The premises in occupation of

the respondent is also admittedly in a highly commercial area i.e.

in the heart of the Delhi being on the main road of Chandani

Chowk; the petitioner has also averred (unchallenged) that she

has no other properties in her name and thus admittedly this

disputed premises (being in a commercial area) from where she

wishes to carry a business of ladies suits and garments would

definitely be a viable and profitable business venture for her; her

Todar Mal residence where she is residing is admittedly

residential. In these circumstances mere fact that the landldady

has not disclosed the address from where she is carrying on this

business would not diminish her bonafide need.

10. The present case is also not a case of additional

accommodation. The judgment of S.K.Mehra (supra) and Santosh

Devi (supra) were distinct on their facts. In the first case the

landlord was occupying the ground floor as also entire second

floor; the question was whether the landlord required the first

floor as well. In the second case the landlady was in the

possession of the first floor; certain additional accommodation

was thereafter subsequently made available to the landlady; it was

in these circumstances that the court thought it fit as being

described as a case of additional accommodation for which a trial

would be required. From these judgments relied upon by the

petitioner are half page judgments; further facts cannot be

deciphered; each case even otherwise has to be weighed in its

own context. In fact if the submission of the learned counsel for

the petitioner on this score is accepted, all cases where the

landlord is living even in a one room tenement owned by him

would become a case of additional accommodation raising a

triable issue and leave to defend should have to be granted and to

which query the leaned counsel has no answer. To say the least,

this argument is wholly misplaced; this was definitely not the

intent and purpose of the Legislature while engrafting the

provisions of Section 14(1)(e) of the DRCA which has to be read

with Section 25 B of the DRCA wherein it has been reiterated time

and again by the Apex Court that this is a summary procedure

which is available for effective and summary disposal of an

eviction petition filed by the landlord on the ground of a bonafide

need either for himelf or any member of his family dependent

upon him. In fact if this argument of the learned counsel for the

petitioner is accepted this entire procedure would have to be

given a go by; this argument is thus rejected. The language of

this Section also clearly states that the need may be of the

landlord or any member of his family dependent upon him and the

landlord or such person has no other reasonably suitable

accommodation.

11. In the judgment of Prithipal Singh Vs. Satpal Singh (dead)

through legal heirs reported in (2010) 2 SCC 15 the Apex Court

has noted herein as below:-

"20. The scope of Chapter III-A of the Rent Act has been elaborately discussed in Ravi Dutt Sharma v.Ratan Lal Bhargava in which this Court duly discussed the object of the Rent Act and also the insertion of Chapter III-A of the same in the following manager:

The dominant object of the act is to provide a speedy, expeditious and effective remedy for a class of landlords contemplated by Sections 14(1)(e) and 14A and for avoiding unusual dilatory process provided otherwise by the Rent Act. It is common experience that suits for eviction under the Act take a long time commencing with the Rent Controller and ending up with the Supreme Court. In many cases experience has indicated that by the time the eviction decree became final several years elapsed and either the landlord died or the necessity which provided the cause of action disappeared and if there was further delay in securing eviction and the family of the landlord had by then expanded, in the absence of accommodation the members of the

family were virtually thrown on the road. It was this mischief, which the Legislature intended to avoid by incorporating the new procedure in Chapter III-A. The Legislature in its wisdom thought that in cases where the landlords required their own premises for bona fide and personal necessity they should be treated as a separate class along with the landlords covered by Section 14(A) and should be allowed to reap the fruits of decrees for eviction within the quickest possible time. It cannot, therefore, be said that the classification of such landlords would be an unreasonable one because such a classification has got a clear nexus with the objects of the Amending Act and the purposes, which it seeks to subserve. Tenants cannot complain of any discrimination because the Rent Act merely gave certain protection to them in public interest and if the protection or part of it afforded by the Rent Act was withdrawn and the common law right of the tenant under the Transfer of property Act was still preserved, no genuine grievance could be made.

.......................

22. A challenge was thrown to Section 25B of the Rent Act in Kewal Singh Vs. Smt. Lajwanti , questioning the classification held to be not in consonance with the objective sought to be achieved and the aforesaid provision must be held to be unconstitutional wherein this Court held that the special provision namely, Section 25B of the Rent Act providing summary procedure for eviction while the landlord pleading bona fide personal requirement, separate classification of such landlords were held to be justified as such classification must be held to be in consonance with the objective sought to be achieved and provision not unconstitutional. Accordingly, in the aforesaid decision, this Court held that Section 25B does not suffer from excessive delegation. Keeping in view the aforesaid observations of this Court in this case and considering the special provisions made in Section 25B of the Act, we conclude that Section 25B of

the Act is a complete code by which the entire procedure to be adopted for eviction of a tenant on the ground of bona fide requirement filed by the landlord in respect of a premises, shall be followed."