Satish Gupta vs Mohan Goyal And Ors.
2014 Latest Caselaw 5205 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 RC.REV.Nos.164/2014 & 225/2014

%                                              16th October, 2014

1.    RC. REV. No.164/2014

SATISH GUPTA                                       ......Petitioner
                         Through:   Mr. S. N. Kumar, Senior Advocate
                                    with Mr. K. B. Soni, Advocate.



                         VERSUS

MOHAN GOYAL AND ORS.                              ...... Respondents

                Through:            Mr. Mukesh Sharma, Advocate with
                                    Mr. Narendera Gautam, Advocate,
                                    Mr. Jaiveer Chauhan, Advocate and
                                    Mr. Manish Tanwar, Advocate.



2.    RC. REV. No.225/2014

SH. ATUL GUPTA AND ORS.                            ......Petitioners
                  Through:          Mr. S. N. Kumar, Senior Advocate
                                    with Mr. K. B. Soni, Advocate.



                         VERSUS

SHRI MOHAN GOYAL                                  ...... Respondent
                         Through:   Mr. Mukesh Sharma, Advocate with
                                    Mr. Narendera Gautam, Advocate,




                                          Mr. Jaiveer Chauhan, Advocate and
                                         Mr. Manish Tanwar, Advocate.


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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Section 25-B(8) of the Delhi Rent Control Act,

1958(hereinafter referred to as 'the Act' ) is filed against the impugned

judgment of the Additional Rent Controller dated 6.1.2014 by which the

Additional Rent Controller has dismissed the leave to defend application and

decreed the bonafide necessity eviction petition filed under Section14(1)(e)

of the Act with respect to the tenanted premises being the first floor of

property bearing no. 3655, Chawri Bazar, Delhi - 110 006. It may be stated

that the area of the plot on which the tenanted premises are situated is just

about 24 square yards as stated before me by the counsel for the

respondent/landlord.

2. The eviction petition for bonafide necessity was filed by the

respondent/landlord pleading that his daughter-in-law is an MBA in Finance

and she therefore requires the tenanted premises for opening of her office of

consultancy business. It was stated that the tenanted premises are in

dilapidated condition and the landlord intends to reconstruct the same. The

son of the respondent was stated to be owning a godown admeasuring 20' x

30' in Kucha Daya Ram, Chawri Bazar but that premises are not available

as it is let out and that too at a substantial rent of Rs. 20,000/- per month.

There are no other alternative suitable vacant premises which are available

to the respondent/landlord for his daughter-in-law to carry on her

consultancy business, and therefore, bonafide need was stated to exist with

respect to the suit/tenanted premises.

3. The petitioner herein was the respondent no. 2 in the eviction

petition. He had filed his leave to defend application seeking leave to

contest the eviction petition. Besides the petitioner, another respondent in

the eviction petition namely Atul Gupta, respondent no. 1 in the eviction

petition, had also filed a leave to defend application. Since both the

applications have been dismissed by the self-same impugned judgment of

the Additional Rent Controller dated 6.1.2014, the present petition as also

the connected rent control revision petition no. 225/2014 filed by Sh. Atul

Gupta & Ors. Vs. Sh. Mohan Goyal are being disposed of by this judgment.

4. There were two main contentions urged by the petitioners

before me for seeking leave to defend. Firstly it was pleaded that the

respondent/landlord had many premises including the second floor portion

situated above the tenanted premises and thus the landlord had alternative

suitable accommodation and consequently the bonafide necessity eviction

petition was liable to be dismissed. The second defence which was raised

was that since the tenanted premises are said to be in a dilapidated condition

the eviction petition could not have been filed for bonafide necessity but

could only be filed under the sub-Section (f) of Section 14(1) of the Act

which provided for eviction of a tenanted premises found to be in a

dilapidated condition. Accordingly, the eviction petition for bonafide

necessity is prayed to be dismissed because it is not maintainable with

respect to a dilapidated premises.

5. Let me first take up the case of whether the respondent/landlord

can be said to have an alternative suitable vacant accommodation and hence

the bonafide necessity eviction petition was not maintainable.

6. The petitioner pleaded that the respondent had the following

properties:

(i) Property no. 3497, Chawri Bazar, Delhi in which the

respondent/landlord is doing the business under the name and style of M/s.

Bath 'N' Doors.

(ii) Property no. 3632, Gali Piao Wali, Chawri Bazar, Delhi where

the business in the name of M/s Sanjay Goyal & Sons is being run.

(iii) Property nos. 3593-94, Brij Mohan Market, Chawri Bazar,

Delhi where the business under the name and style of M/s. Subash Goel &

Co. is being run.

(iv) The second floor above the tenanted first floor portion of 3655,

Chawri Bazar, Delhi.

(v) Property no. 3522, Kucha Daya Ram, Chawri Bazar, Delhi

which is a godown.

(vi) Property no. 3498, Gali Bajrang Bali, Bazar Sita Ram which

according to the petitioner has been recently let out to a tenant by the

respondent and his son.

(vi) Property no. 3083, Mohalla Dassan, Chawri Bazar, Delhi taken

by the landlord from Sh. Ram Narayan Jindal.

7. Before I turn to each of the properties, and most of which have

been pleaded by the landlord as not owned by him or any of his family

members, it is necessary to reiterate that a premises cannot be an alternative

suitable premises unless it is pleaded to be a vacant premises which can be

put to use for the purpose for which bonafide necessity eviction petition is

filed. A reference however to most of the properties which are averred by

the petitioners to be alternative suitable accommodation show that even as

per the leave to defend application filed by the petitioner/tenant most of

these properties are not pleaded to be vacant and are those where businesses

are admittedly stated to be carried on. Therefore, even for the sake of

argument it is assumed that the various premises as pleaded by the

petitioners belong to the respondent/landlord, since however they are not

vacant and available, hence, the stated premises cannot be considered as

alternative suitable accommodation.

8. So far as the property no. 3497, Chawri Bazar, Delhi is

concerned, admittedly the business of Bath 'N' Doors is being carried out

from the said premises and which as per the respondent is a partnership

concern of the respondent/landlord and one Sh. Baldev Gupta. Therefore,

these premises cannot be said to be an alternative suitable premises because

the landlord is not expected to vacate the premises from where he is carrying

on the business so that another family member can carry on business. The

second and a more important aspect is that these premises are not owned by

the landlord but are owned by Smt. Aarti Gupta w/o Sh. Baldev Gupta No.

29-A, Engineer Apartment, Patparganj, Delhi and the landlord has filed such

certificate of the partnership firm of Bath 'N'Doors.

9(i) So far as the properties being property no. 3632, Gali Piao

Wali, Chawri Bazar, Delhi, and property nos. 3593-94, Brij Mohan Market,

Chawri Bazar, Delhi are concerned, these premises are said by the

petitioner/tenant to belong to the respondent/landlord, but, not only the

assertion of the ownership of these properties of the petitioner is only a bald

assertion which cannot raise a triable issue, but also the respondent has filed

certificates issued by Sanjay Goyal and Subhash Goyal that these two

properties are owned by Sh. Sanjay Goyal (carrying on the business of Sh.

Sanjay Goyal & Sons as per income tax return having PAN No.

AAAHS2293F filed on record) and Subhash Goyal (carrying on business as

sole proprietor of M/s Subhash Goyal & Co. as per income tax return with

PAN No. AADPG4287E filed on record). The income tax return copies of

these businesses of Sh. Sanjay Goyal and Sh. Subhash Goyal as filed show

the carrying on of their businesses from these two properties.

(ii) It is also relevant that the respondent in the reply to the leave to

defend application had specifically stated that not only the above premises

belong to Subhash Goyal, and Sonia Goyal, but also that they are not vacant

inasmuch as businesses are being carried on in these properties in the name

of M/s. Sanjay Goyal & Sons belonging to Sanjay Goyal with respect to

property no.3632), and Subhash Goyal having business in the name of

Subhash Goyal & Co. with respect to property nos.3593-94.

10(i) So far as the second floor above the suit premises no. 3655 is

concerned, the same cannot be considered as an alternative suitable premises

firstly because admittedly the same is in dilapidated condition and hence

cannot be put to use. Secondly this portion being situated on the higher

second floor, consequently, the tenanted premises on the first floor will be

more suitable inasmuch as a tenant cannot dictate to the landlord's family

members that they should not carry out the consultancy business from a

more convenient portion on the first floor.

(ii) Since we are dealing with the premises no.3655, thus at this

stage itself I may also refer to and deal with the second ground which is

urged on behalf of the petitioner for seeking dismissal of the bonafide

necessity eviction petition that the entire premises being dilapidated and are

required to be re-constructed thus the bonafide necessity eviction petition

under Section 14(1)(e) of the Act cannot lie and the eviction petition could

only have been filed under Section 14(1)(f) of the Act.

In my opinion, the Additional Rent Controller has rightly held

that there is no illegality in the demand for the tenanted premises and to use

the same after re-construction inasmuch as surely a landlord if he finds a

premises dilapidated he can after occupying the same, thereafter in

accordance with law, seek re-development and re-construction and it is not

the law that once the premises vacated on the ground of bonafide necessity

then the landlord is legally prevented from reconstructing a property to make

it a modern building. Therefore, the argument urged on behalf of the

petitioner of the premises being dilapidated, and on that ground the same

cannot be a subject matter of the bonafide necessity eviction petition, is

misconceived, and is rejected along with the argument that the second floor

is a an alternative suitable accommodation.

11. So far as the property no. 3522, Kucha Daya Ram, Chawri

Bazar, Delhi is concerned, admittedly, the same though is owned by the son

of the respondent but the same stands let out at a handsome rent of Rs.

20,000/- per month, and therefore, again this property cannot be said to be a

vacant available premises to carry on the business of consultancy work by

the daughter-in-law of the respondent/landlord. After all the landlord's son

is not expected to sacrifice the substantial rent of Rs. 20,000/- per month by

evicting his tenant.

12. So far as the two properties being property no. 3498, Gali

Bajrang Bali and property no. 3083, Mohalla Dassan, Chawri Bazar are

concerned, these two properties are neither vacant and nor owned by the

respondent. The property no. 3498 is being occupied and used as a godown

by the business of M/s Om Prakash Goyal & sons and it is owned by

S.N.Nigam and Vishal Nigam and Akhil Nigam. The copy of rent

agreement dated 18.8.2009 of the Nigams with M/s Om Prakash Goyal &

sons is filed on the record. The property no. 3083 is being occupied and

used as a godown of the business of Bath 'N' Doors and has been taken on

rent from Ram Narayan Jindal vide rent agreement dated 14.8.2008 and

copy of which is also filed on record. Thus having of two properties no.

3498 & 3083 cannot be said to be available alternative suitable

accommodation as neither they are owned by the respondent and nor are

vacant.

13. In view of the above, the position which emerges is that the

premises which are pleaded by the petitioner to be alternative suitable

premises are either not vacant or they are found not to belong to the

respondent or any of his family members, and therefore, these premises

cannot be said to be alternative available suitable accommodation.

14. No other argument or issue is pressed before this Court.

15. In view of the above, there is no merit in the petition, and the

same is therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J OCTOBER 16, 2014 godara