Shri Bhupinder Singh Bawa vs Smt. Asha Devi
2014 Latest Caselaw 3363 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+              RC. REV. 245/2014 & CM Nos. 11899/2014 (stay),
               11900/2014 (exemption)

%                                                          28th July , 2014

SHRI BHUPINDER SINGH BAWA              ......Petitioner
                  Through: Mr. Rajesh Yadav, Ms. Ruchira
                           Arora, Advocates


                          VERSUS

SMT. ASHA DEVI                                      ...... Respondent

                          Through:       Mr. S.K. Sharma, Mr. Mayank
                                         Bansal, Advocates

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This revision petition is filed under Section 25-B(8) of the Delhi Rent

Control Act, 1958 (hereinafter referred to as 'the Act') against the judgment

of the Additional Rent Controller dated 26.2.2014 which has decreed bona

fide necessity eviction petition with respect to property bearing no. C-1(old

property no. 285) Basai Dara Pur, Sharda Puri, Ring Road, New Delhi -

110015 comprising two rooms and one small room as shown in red colour in

the site plan Ex. PW-1/2. The eviction petition has been decreed after trial.

2. Respondent/landlady claimed the tenanted premises for commercial

use for opening of the business of sanitary and hardware by her son Sh.

Vaibhav Maheshwari who was pursuing MBA at the time of the filing of the

eviction petition and completed the same in June, 2011 and who wanted to

start his separate business. The tenanted premises is situated in the costly

and precious marble market of Raja Garden, and therefore, the tenanted

premises is in a very profitable area for the purpose of establishing the

business of sanitary and hardware by the son of the respondent namely Sh.

Vaibhav Maheshwari.

3. There was no dispute as regards the relationship of landlord and

tenant and also with respect to the number of family members of the

respondent/landlady, and which is so noted in para 4 of the impugned

judgment. The disputes were with respect to availability of various

alternative premises for the son Sh. Vaibhav Maheshwari to carry on his

business and which properties were said to belong to the husband of the

respondent, the family company M/s Jaishree Granites Pvt. Ltd., and, one

small shop in the lane in this very property belonging to the

respondent/landlady. It was also pleaded that the son Sh. Vaibhav

Maheshwari was a Director in the family company M/s. Jaishree Granites

Pvt. Ltd. having a very nominal share and was getting a salary of Rs.

50,000/-, and therefore, he did not require the premises for starting his

business.

4. So far as the aspect that the small shop in the lane, not on the main

road, which allegedly can be used for starting of the business, besides the

fact that the shop is a very small shop and not as big as the tenanted

premises which comprises of three rooms is concerned, it is perfectly open

to the landlord to choose a more suitable premises for carrying on the

business by her son and the landlady cannot be dictated by the tenant as to

from which shop her son should start the business from. This is the ratio of

the recent judgment of the Supreme Court in the case of Anil Bajaj & Anr

Vs. Vinod Ahuja 2014 (6) SCALE 572. Therefore, the very small shop in

the side lane cannot be said to be an alternative suitable premises available

for commencing and carrying on the business of sanitary and hardware by

the son of the respondent/landlady.

5. So far as the aspect that the son is a Director in the family

company M/s. Jaishree Granites Pvt. Ltd. is concerned, this cannot mean that

as a young entrepreneur the son cannot start his own business of sanitary and

hardware. It is not the law that if a family member of a landlord/landlady

requires the premises for starting of the business of his/her young son who is

an MBA, there can be lacking bonafides for the eviction petition and that the

son must continue as a Director in the family company M/s. Jaishree

Granites Pvt. Ltd. and not branch out as a young entrepreneur. There is no

law that a family member of the landlady can be prevented from opening a

new business. Therefore, merely because the son Sh. Vaibhav Maheshwari

is presently a Director in the company M/s. Jaishree Granites Pvt. Ltd., the

same cannot mean that there is no need of bonafide necessity of the tenanted

premises for starting of a fresh business of sanitary and hardware by the son

Sh. Vaibhav Maheshwari. The argument that the son Sh. Vaibhav

Maheshwari is already a Director in the family company, and therefore,

there is no bonafide need of the tenanted premises, is a misconceived

argument and the same is therefore rejected.

6. The following properties have been stated to be available to the son

Sh. Vaibhav Maheshwari, and which properties are said to be properties

owned by the husband of the respondent Sh. Shyam Sunder Maheshwari or

the properties belong to the family company M/s. Jaishree Granites Pvt.

Ltd.:-

(i) Property no. 285-B, Sharda Puri, Ring Road, New Delhi which is

belonging to the husband of the respondent Sh. Shyam Sunder Maheshwari.

(ii) Property no. A-2/53, W.H.S., Kirti Nagar, New Delhi belonging to the

husband of the respondent Sh. Shyam Sunder Maheshwari.

(iii) Property nos. 43,44,45 and 46 situated, Block-A-1, W.H.S. Kirti

Nagar, New Delhi owned by the company M/s. Jaishree Granites Pvt. Ltd..

(iv) Property no. D-201, Mansarovar Garden, New Delhi which is

belonging to the husband of the respondent Sh. Shyam Sunder Maheshwari.

(v) Property no. D-12, Rajouri Garden, Ring Road, New Delhi which is

the registered office of the M/s. Jaishree Granites Pvt. Ltd.

7. So far as the properties belonging to the company are concerned,

surely, they not being in a market area cannot be said to be alternative

suitable premises for carrying on the business of a shop of sanitary and

hardware for which the tenanted premises on the main road are ideally

suitable.

8. So far as the property no. 285-B is concerned, the said property is not

lying vacant and is being used as a retail outlet for marble and granite by the

husband of the respondent/landlady. Once these premises are not vacant and

are being used by the husband, Sh. Shyam Sunder Maheshwari for his

business as a retail outlet for marble and granite, it cannot be argued that the

husband must not use the said premises and vacate the same for opening of

the shop by the son Sh. Vaibhav Maheshwari. A tenant cannot force the

family member of a landlady to stop his business so that the tenant in the

tenanted premises is not evicted. It is not the law that a petition for bona

fide necessity does not lie because the husband of the landlady who is

carrying on a business in a premises must stop that business, for a son who

wants to open a new business, more so when the tenanted premises are more

suitable being on the main road and in a valuable market. The argument,

therefore, with respect to property bearing no. 285-B being alternative

premises is rejected.

9. At this stage, I would like to clear an aspect that the counsel for the

petitioner has argued that this property no. 285-B is shown in the Income

Tax Returns of the respondent/landlady as her property, and therefore,

actually the property no. 285-B is owned by the respondent/landlady. This

argument appeared to have some merits on the first blush, however, the

argument really is only making mountain out of a molehill because the suit

property no. 285-B in the Income Tax Returns of the respondent/landlady

shows the rental incomes from the tenanted premises in her return, and the

alphabet 'B' appearing after number 285 is wrongly written in the Income

Tax Return of the respondent/landlady. In any case, the suit property no.

285-B belongs to the respondent/landlady is an argument which has no legs

to stand upon because the case of the petitioner/tenant as per his own

pleadings was that the property no. 285-B belongs not to the

respondent/landlady but to her husband Sh. Shyam Sunder Maheshwari.

Therefore, no capital can be made out of the typing errors in the income tax

returns of the respondent/landlady of shop property bearing no. 285 being

wrongly typed as 285-B. This argument of the petitioner is also therefore

rejected.

10. The next argument which was urged for existing of an alternative

property was with respect to property no. A-2/53 at Kirti Nagar. In this

regard, it has been proved by the respondent in her evidence that this

property is owned by the husband of the respondent, and the same is not

lying vacant inasmuch as the same is used by M/s. Jaishree Granites Pvt.

Ltd. as godown for the stock of the marble and granite. I put it to the

counsel for the petitioner to show me any averment made by the respondent

that the premises no. A-2/53 is vacant and available to the son of the

respondent for starting of the business, however, no deposition of the

petitioner or any admission in the cross-examination of the respondent was

pointed out that the property no. A-2/53 is lying vacant. Once the property

no. A-2/53 is not lying vacant and is being used by the husband of the

respondent for his business, this property cannot be alternative suitable

property for dismissing of the bonafide necessity petition.

11. So far as the properties in Block A-1 at Kirti Nagar are concerned,

once it is admitted that these properties belong to the company, thereafter it

cannot be argued by the petitioner that properties of the company even if it is

a family company, are available for starting of the business more so because

this property is not vacant and is already being used as a godown for marble.

This aspect is specifically admitted in the cross-examination by RW-1 Sh.

Bhupinder Singh Bawa, petitioner/tenant, conducted on 9.12.2013. This

relevant admission of the petitioner herein appears in the second page of the

cross examination dated 9.12.2013 from the first line to the fourth line.

Therefore, once the properties at Block A-1 are being used by the company,

and is not lying vacant, it cannot be urged that this property should be

vacated by the company for opening of the business by the son of the

respondent. Also, assuming that more than one properties are available for

carrying on the business or opening of the business, a tenant cannot dictate

which property will be more suitable inasmuch as property on a main road in

a very valuable area such as the tenanted premises is a much better option

for commencing of a new business. The argument of the petitioner,

therefore, relying on the properties at Block A-1, Kirti Nagar is also

misconceived and hence rejected.

12. That takes us to the final argument and the final property bearing no.

D-201, Mansarovar Garden, New Delhi. It was argued by the petitioner that

the first floor of this property was let out by the husband of the respondent to

the brother of the husband of the respondent and which should not have been

let out because the same could have then been used for the business of the

son of the respondent. This argument is misconceived for various reasons.

Firstly, a property on a main road and on the ground floor is much more

suitable for carrying on the business of sanitary and hardware, then as

against a property which is situated on the the first floor of the property no.

D-201 which is on tenancy with the brother of the husband of the

respondent/landlady. During the course of the arguments, counsel for the

petitioner sought to make out the case that the entire property including the

ground floor of property no. D-201 was available, and therefore, the ground

floor of the property no.D-201 is alternative suitable property. However,

this stand of the petitioner is not correct because in the cross examination

conducted of the petitioner as RW-1 on 9.12.2013, at page 2 of the cross

examination, the petitioner has admitted that in the first floor and second

floor of the property no.D-201, brother-in-law (Dever) of the respondent is

carrying on his business. In fact, in this cross-examination at the end of the

page 2 the petitioner only states that the son can carry on business from the

basement of property no. D-201, and therefore, impliedly admitting that the

husband of the respondent is not the owner of the ground floor of this

property. Also, there is no positive statement in any deposition of the

petitioner in the court below that the ground floor of property no. D-201 is

owned by the husband of the respondent. No doubt, it is stated that the

property no. D-201 is owned by the husband of the respondent, however,

once it becomes clear that the ground floor is not specifically stated to be

owned by the husband of the respondent, and only the basement is owned as

per the specific admission made by the petitioner in the cross examination

on 9.12.2013, I do not find any error in the conclusion of the Additional

Rent Controller that there is no ground floor of the property no. D-201

which is owned by the husband of the respondent and from where the son of

the respondent can start and carry on his business. Merely because there is

some amount of confusion with respect to the ground floor which is not

owned by the husband of the landlady, the same cannot mean that the

petitioner can take any advantage of that, more so when the same is to be

taken with the fact that it is always open to the landlady and her son to

decide which premises are more suitable for commencing and carrying on

business of sanitary and hardware.

13. In view of the above, I do not find any reason to interfere with the

detailed conclusion and exhaustive judgment of the Additional Rent

Controller which has been passed after trial and whereby the eviction

petition of bona fide necessity has been decreed. This petition is therefore

without any merit and is accordingly dismissed, leaving the parties to bear

their own costs.

JULY 28, 2014                                    VALMIKI J. MEHTA, J
godara