Sh. Arun Kumar Sharma vs Pawan Gupta
2014 Latest Caselaw 4100 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            RC.REV.No.89/2012 & C.M.No.3393/2012 (stay)


%                                                    02st September, 2014


SH. ARUN KUMAR SHARMA                               ......Petitioner
                  Through:               Mr.Alok Kumar with Mr.Neeraj Gupta,
                                         Mr.Amit Kumar Singh and Mr.Rishabh
                                         Mehta, Advocates.

                           VERSUS

PAWAN GUPTA                                                 ...... Respondent

                           Through:      Mr.Alok Sharma, 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 is filed by the petitioner/tenant under Section 25B(8) of the

Delhi Rent Control Act, 1958 (hereinafter referred to as the 'the Act')

impugning the order of the Additional Rent Controller dated 17.1.2012 which

has dismissed the leave to defend application filed by the petitioner/tenant and

has decreed the bonafide necessity petition under Section 14(1)(e) of the Act

with respect to the tenanted premises being one shop on the ground floor of

property no. IX/17 (Part) admeasuring 60 sq. yards in khasra no.331/36, 37,

Kailash Nagar, Village Seelampur, Illaqa Shahdara, Delhi-31.

2. The respondent/landlord filed the bonafide necessity petition stating that

the respondent/landlord carries on his seasonal business of selling festival items

during Rakshabandhan, Holi, Diwali etc from the foot path of Sadar Bazar, and

therefore he needs the suit/tenanted premises which is the only shop available

to the respondent/landlord for carrying on his business.

3. The petitioner/tenant filed his leave to defend application and stated that

the respondent/landlord is in fact carrying on his business from a room and

godown on the first floor above the tenanted premises, and the

respondent/landlord therefore does not need the tenanted premises. It was also

pleaded in the leave to defend application that the entire area of Kailash Nagar

is being used for commercial purposes and all floors in Kailash Nagar area are

being used for commercial purposes, and therefore the respondent/landlord has

alternative suitable accommodation being the room and godown on the first

floor above the tenanted premises.

4. In a bonafide necessity petition, a landlord has to show the following

three aspects in order to succeed:-

(i) there is a relationship of landlord and tenant between the parties;

(ii) that the landlord needs the premises for his own need and/or the need of his family members; and

(iii) the landlord has no other alternative suitable accommodation.

5. Before me, the aspect with regard to the relationship of landlord and

tenant is not denied. What is essentially argued, and which was also argued

before the Additional Rent Controller, was that the respondent/landlord has

alternative suitable accommodation being a godown and a room on the first

floor above the tenanted premises, and being the alternative suitable

accommodation, there is hence no bonafide need of the suit/tenanted premises.

6. In my opinion, the arguments urged on behalf of the petitioner/tenant is

misconceived because ground floor portion is most suitable for carrying on the

business, especially for selling festival items during Diwali, Rakshabandhan,

Holi etc. During these festival days, the respondent/landlord sells the items

which are generally sold in those festivals, and therefore, once the

respondent/landlord has no shop on the ground floor anywhere in Delhi from

where such business is carried on, surely the tenanted premises situated on the

ground floor can be said to be bonafidely required by the respondent/landlord.

Merely because the respondent/landlord has a portion in the first floor above

the tenanted premises cannot mean that the said portion on the first floor is

alternative suitable accommodation, inasmuch as it is well known that a shop

on the ground floor obviously is more preferable than a portion on the first

floor, more so for the type of business which is being carried on by the

respondent/landlord. It is settled law and as so held in various judgments of the

Supreme Court that portions/shops on the ground floor are better for carrying

on business and a tenant cannot dictate to the landlord that the business should

not be carried on from the better located premises on the ground floor.

7. In view of the above, I do not find any merit in this petition, and the

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

8. While dismissing the petition, the interim order of user charges passed

by the learned Single Judge of this Court on 24.2.2012 relying upon the

judgment of the Supreme Court in the case of Atma Ram Properties Vs.

Federal Motors (P) Ltd. (2005) 1 SCC 705 is made absolute. The amount

deposited in this Court along with accrued interest be released to the

respondent/landlord by the registry of this Court within four weeks.

VALMIKI J. MEHTA, J SEPTEMBER 02, 2014 KA