Alternate accommodation for landlord alone cannot deny eviction of tenant: High court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 25th January 2021 Date of decision: 5th March 2021 RC.REV. 174 2020 & CM APPL. 913 2021 THE TECHNOLOGICAL INSTITUTE OF TEXTILES AND SCIENCES THR AR PARMOD SINGH Petitioner Through: Mr. Jayant K. Mehta Mr. Sukant Vikram Mr. Nipun Malhotra and Mr. Kumar Shashwat Advocates. M: 9717062602) M S SHREE NATH JI DEVELOPERS THR ITS PARTNER UMESH CHAND AGGARWAL Respondent Through: Mr. Sudhir Nandrajog Mr. Anupam Lal Das Senior Advocate with Mr. Anuj Kumar Garg and Mr. Krishna M. Singh Advocates M: 99993107420). CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J. 1. The present revision petition has been filed challenging the impugned order dated 7th February 2020 by which the leave to defend application filed by the Petitioner Tenant has been dismissed by the ld. Additional Rent Controller in E. No. 662 2018 in CIS No. 887 2018 titled M s Shree Nath Ji Developers v. The Technological Institute of Textiles and Sciences. Brief Facts 2. The brief background to this petition is that the ground floor of Shop No.1597 Ward No. II Jogdhian Colony Bhagirath Palace Chandni Chowk RC.REV. 174 2020 Delhi was taken on rent by the Tenant from 1960 onwards from its erstwhile owner Mr. Jogdhian Rastogi. The Tenant is a registered Society under the West Bengal Society Registration Act 1961 and claims to be a Non Profit Organization which takes over or otherwise supports schools colleges or other educational institutions for the development of education and diffusion of knowledge in different branches of textile technology and other fields of sciences. The Landlord Respondent hereinafter ‘Landlord’) is a partnership firm which is engaged in the real estate business. 3. The first and second floor in Property No. 1526 Bhagirath Palace Chandni Chowk Delhiwas purchased by the Landlord on 2nd May 2011 from the legal heirs of Mr. Jogdhian Rastogi. It consists of 58 shops including the tenanted premises as well as Shop No.128 which is stated to be the office of the Landlord. On 5th October 2013 the Landlord purchased Property No. 1597 98 Ground Floor Ward No. II Jogdhian Colony Bhagirath Palace Chandni Chowk which includes the tenanted premises. The Landlord issued a legal notice dated 12th November 2013 to the Tenant demanding deposit of rent as it had stepped into the shoes of the previous owners. 4. It is claimed that the tenanted premises was under the Slum Development Authority. Accordingly the Landlord filed an application under Section 19 of the Slum AreasAct 1956 hereinafter ‘Slum Act’) and received sanction from the Competent Authority to take action in respect of its Tenants vide order dated 5th January 2018. 5. The Tenant challenged the aforesaid order by filing a writ petition RC.REV. 174 2020 being W.P(C) No. 1244 2018 titled The Technological Institute of Textiles and Sciences v. MCD& Ors. before this Court which is pending as on date. During the pendency of these proceedings the Landlord moved an application under Section 14(1)(d) of the Delhi Rent Control Act 1958 hereinafter ‘DRC Act’) seeking eviction of the Tenant however the same was dismissed on 4th February 2017. The Landlord has appealed the order of dismissal which appeal is also stated to have been dismissed. Thereafter the Landlord moved an application under Section 14(1)(e) of the DRC Act. In the said petition the leave to defend application of the Petitioner has been dismissed by the impugned order dated 7th February 2020. The operative portion of the order reads as under: Hence the application for leave to defend filed by respondent is ordered to be dismissed. Consequently eviction order is liable to be passed against the respondent u s Section 25 Bof the Act. In view of above petition is held entitled for recovery of the tenanted premises i.e. 1597 Ground Floor Bhagirath Palace Chandni Chowk Delhi as shown in red colour in the site plan filed with the petition. However the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 of the Act. Keeping in view the facts & circumstances of the case no order as to costs.” Hence the present petition. Submissions of the Tenant 7. Mr. Jayant Mehta ld. counsel appearing for the Tenant submits that the premises are being used for the purpose of storage of goods of educational institutes run by the Tenant. The rent being paid is Rs.1 040 RC.REV. 174 2020 per month. The Tenant assails the impugned order on four grounds which are as i) The primary ground on which the Tenant opposes eviction is that the Landlord already has an office in Shop No.128 of the same building i.e. Property No.1526 as stated in the memo of parties of the eviction petition. Ld. counsel for the Tenant further submits that Property No.1526 which was purchased by the Landlord in fact has a total of 58 shops. It is submitted that though it is the case of the Landlord that 41 shops were sold before filing of the petition in that case as well the Landlord owns the remaining 17 shops in the building where he also operates his office and cannot be entitled to a decree under Section 14(1)(e) of the DRC Act. It is thus submitted that the Landlord herein is not an ordinary landlord but a person who deals with properties on a daily basis. Thus the standard of bonafide use that could have been applied would not be the same as the standard that should be applied in this case. Secondly it is submitted that the ARC placed enormous importance on the fact that a demolition order has been passed against 17 shops and also recorded that the demolition order was on record. To the contrary ld. counsel submits that except the order at page 208 which is not a demolition order and is in fact a letter of intimation there is no demolition order which was placed on record and the letter of the North Delhi Municipal Corporationwhich is relied upon by the Landlord does not prove that the shops were not habitable. The same has seen the light of the day for the first time with RC.REV. 174 2020 the written synopsis filed this matter before this Court. Surprisingly the ARC refers to the demolition order and hence the impugned order is not a tenable order. iii) Thirdly the ld. ARC has completely missed the point on burden of proof. Ld. counsel submits that the burden of proof initially lies on the Landlord and not on the Tenant. The admission that the Landlord has Shop no.128 as his office is thus itself sufficient at the leave to defend stage to prove the said fact. Nothing more would be required in law. The Tenant cannot be asked to prove negative what the Landlord admits. iv) Fourthly he submits that once a triable case is made out leave to defend should be granted. He relies upon the following judgments to argue that at the stage of leave to defend a very strong case need not be shown and only triable issues need to have been raised: a) Charan Dass Duggal v. Brahma Nand 1 SCC 301 b) Precision Steel & Engineering Works and Anr v. Prem Deva Niranjan Deva Tayal 3 SCC 270 c) Deepak Gupta v. Sushma Aggarwal 202 DLT 121. The proposition canvased on the strength of the aforementioned three judgments is that a frivolous defense cannot be entertained and the burden to prove bonafide need is on the Landlord. Once the Landlord has admitted that the said address exists and correspondence is received by a guard posted there and if rent is being received that is sufficient proof at the leave to defend stage. 9. Moreover ld. counsel submits that at the stage of the leave to defend application the Court adopts a liberal approach and exclusion of the trial RC.REV. 174 2020 would not be permissible. He submits that the same is considered mandatory if triable issues are raised. Insofar as the Tenant’s affidavit is concerned if the affidavit is prima facie considered as being plausible further proof can only be sought at the stage of trial. Moreover complicated issues of fact or law cannot be gone into at the stage of the leave to defend application. Mr. Mehta relies upon the judgment in Sushma Khanna v. Rajwant Kaur 2017 SCC OnLine Del 10855 wherein the Supreme Court under similar circumstances i.e. the landlord therein had six shops granted leave to defend to the tenant therein. 10. Ld. counsel then takes the Court through the impugned order and points out various errors by the ld. ARC at pages 61 62 63 65 and 66. After reading the impugned order he concludes that the ld. ARC has put an enormous burden upon the Tenant at the stage of leave to defend which approach is contrary to law inasmuch as the Tenant only needs to establish plausibility and not proof. He submits that the ld. ARC has reversed the burden of proof as contained in law by holding that the Tenant does not show that the administrative office of the Landlord is functioning at Shop No.128 and that the shops are not demolished. This puts the burden of proof in the negative which is not the correct approach as per the DRC Act. Insofar as the alternate address available with the Landlord firm is concerned it is submitted that the ld. ARC has again wrongly held that the burden of proof for establishing that an alternate address is available has not been discharged by the Tenant. 11. Mr. Mehta submits that the Tenant does not have to show prima facie evidence at the stage of the leave to defend application. In support of his application he relies upon paragraphs (f) & of the leave to defend RC.REV. 174 2020 application where the Tenant categorically states that the Landlord is using Shop No.128. He further argues that there is no document placed on record to show that 41 shops were sold and that would be a matter of evidence. 12. Mr. Mehta ld. counsel further submits that in the list of documents there is no demolition order which is mentioned though the same finds a mention in the pleadings of the eviction petition under Section 14(1)(e) of the Delhi Rent Control Act 1958. In paragraph 7 of Annexure A to the eviction petition there is a mention of the demolition order however at page 154 no demolition order has been placed on record. Ld. counsel thereafter relies upon CM APPL. 31672 2020 to argue that the order of demolition now relied upon is dated 19th October 2015. Thus there was no order of 27th July 2015. Moreover he submits that the said document was not on record when the trial court heard the leave to defend application inasmuch as even as per the postal receipt on Annexure R 2 of the application the written submissions along with the said demolition order were purportedly sent on 3rd February 2020. The trial court reserved judgment on 20th January 2020. Thus there was no occasion for the demolition order to be considered by the trial court. 13. Ld. counsel further submits that the Landlord continues to use Shop No. 128 as the functional address as there is no sealing or demolition of the said shop. This is evident from a perusal of the partnership deed the petition filed in the trial court the registered office of the Landlord being Shop No.128 etc. Ld. counsel concludes by stating that the present petition is now dealing with the leave to defend application where the tenant has to only show a triable case. RC.REV. 174 2020 Submissions of the Landlord 14. On the other hand Mr. Nandrajog ld. Senior Counsel appearing for the Landlord submits that the NrDMC’s letter placed at page 208 of the petition proves that the said shops were sealed demolished. The said letter which was issued by the NrDMC pursuant to the representations filed by the Landlord dated 25th July 2016 and 10th February 2018 shows that the Landlord sought permission to repair 17 part demolished shops which request was rejected by the legal department of the NrDMC. Ld. Sr. Counsel submits that the said letter which was on record before the ARC itself proves beyond any doubt that the 17 shops remain sealed and the Landlord requires the tenanted premises for the purpose of running its office. 15. It is further argued that the onus of proving that the Landlord has an alternate property is on the Tenant and this fact has been discussed in detail by the ARC in the impugned order where it has clearly been held that the Tenant has failed to discharge the said burden. He further relies upon the finding of the ARC in paragraph 9 of the impugned order to argue that while the Landlord was able to show that the shops were sealed by means of the letter issued by the NrDMC the Tenant was unable to show that the shops were in usable condition. He further relies upon the finding of the ARC that the Landlord has clearly established by the demolition order that the NrDMC had sealed the shops in 2015. 16. Ld. Senior Counsel appearing for the Landlord submits that the eviction petition itself is clear on all the facts. He submits that the Landlord has clearly stated that 41 shops had been sold and shutters of 17 shops had been removed and the shops were demolished sealed by the NrDMC. He submits that when this position is read with the list of documents contained RC.REV. 174 2020 in the order of the NrDMC nothing further needs to be established. 17. Mr. Nandrajog then submits that the order of the NrDMC itself was sufficient for the Court to believe the version of the Landlord. He further submits that in the leave to defend application apart from making mere allegations and bald averments that selling of the shops is false and demolition of the shops is false nothing further has been put forth by the Tenant. He submits that these averments are vague and ambiguous. The ARC has clearly held that the leave to defend cannot be granted on the basis of vague averments. He further submits that the plea of the Tenant is without any basis and thus such averments cannot be considered to be sufficient. 18. He finally concludes by arguing that in revisional jurisdiction the Court does not have to reappreciate all the facts. Instead the Court is to broadly see if the ARC’s approach is in accordance with law. He relies upon the judgments of the Supreme Court in Baldev Singh Bajwa v. Monish Saini 12 SCC 778 and Ram Saroop & Ors. v. Viney Kumar Mahajan as well as the judgment of this Court in Lalta Prasad Gupta v. Site Ram RC.REV.352 2017 decided on 2nd August 2017]. 19. Mr. Das ld. Senior counsel thereafter appearing for the Respondents concedes that the order of demolition was not filed with the eviction petition. However the same was part of the written submissions. He relies upon the contents of the order dated 19th October 2015 which records that there was a demolition order which has been passed on 27th July 2015. Thus he submits that there can be no doubt that the document exists. Moreover he also submits that the said documents along with the written submissions find reference in the impugned order dated 7th February 2020 RC.REV. 174 2020 on page 65 where the trial court records that the demolition order is on record. Thus there can be no doubt that the said documents are on record. Finally he submits that the order is filed on page 1159 of the trial court record. Finding and Analysis 20. Heard ld. counsels for the parties. The short question is as to whether the ld. Rent Controller was right in rejecting the leave to defend of the Tenant in the petition under Section 14(1)(e) of the DRC Act. 21. The Landlord Tenant relationship between the parties is admitted. It is also not in dispute that the petition is governed by the provisions of the DRC Act. The Tenant has been in possession of the tenanted premises since 1960 i.e. for more than 60 years. The monthly rent for the premises is Rs.1040 . The present Landlord purchased the tenanted premises in 2013 and since then has made various attempts to evict the Tenant and obtain possession of the tenanted premises. Initially the Landlord sought permission under Section 19 of Slum Act for instituting and commencing eviction proceedings. The same was granted by the competent authority but the challenge to the same is pending before this Court. A petition under Section 14(1)(d) of the DRC Act was also filed which was dismissed by the ld. Additional Rent Controller on 4th February 2017. 22. The petition under Section 14(1)(e) of the DRC Act was filed in October 2018 on the ground of bona fide need. The main ground on which eviction was sought was that Shop No.128 which was being used as the administrative office of the Landlord has been demolished sealed in 2015. A substantive part of the arguments addressed by the parties was on the issue as to whether Shop No.128 was indeed being used or not by the RC.REV. 174 2020 Landlord. The case of the Tenant is that the Landlord continues to use the said shop’s address in all its pleadings and documents as also in the affidavits and that there is a presumption that the said premises is being used. The Landlord’s stand is that the said shop has been sealed demolished way back in 2015 and is not being used though the address may be used by the Landlord. 23. The ld. ARC has vide the impugned order dated 7th February 2020 accepted the case of the Landlord and observed that the Landlord has been able to prove that Shop No.128 has been sealed. The relevant extract of the ARC’s order is extracted herein below: The petitioner’s alleged claim of bonafide requirement is exclusively premises around the allegation that the shop no. 128 situated in property bearing no. 1526 Bhagirath Palace Chandni Chowk Delhi is not available to the petitioner for running its administrative office due to alleged demolition and or sealing thereof by NDMC in the year 2015 which itself is farce on the face of it and contrary to records which shows that the petitioner is actively running its administrative office from the said very premises being in possession and in control of the said shop. The petitioner had placed on record the Demolition order. Per contra the respondent had not shown any document in support of his averment that the shops have not been sealed. Respondent had stated that the petitioner had stated the address of shop no. 128 everywhere as its administrative office per contra the petitioner had argues that the same had been used only because earlier shop no. 128 was being used as administrative office and the same everywhere. That RC.REV. 174 2020 convenience sake the same is being used even now and the guard of the petitioner firm sits outside the office to collect correspondence if any. The respondent could not furnish any proof that office at 128 is working. The defence is thus This finding of the ld. ARC is vehemently questioned by the Tenant and lengthy arguments were addressed on the said issue. 24. The Landlord purchased property No. 1526 Bhagirath Palace Chandni Chowk in 2011 which consisted of 58 shops. Out of these 41 shops have already been sold. The status of the remaining 17 shops is clearly contained in the letter of the Nr.DMC which records as under: “Subject: Intimation w.e.f. representation dated 25.07.2016 and 10.02.2018 in respect of property bearing No. 1526 Bhagirath Palace Chandni Chowk Delhi in terms of directions passed by Hong’ble High Court in W.P.(C) No. 8906 2015 Sir Your representation dated 25.07.2016 & 10.02.2018 wherein existence of 29 shops each on the 1st & 2nd floor of property bearing number 1526 Bhagirath Palace Chandni Chowk Delhi in terms of order dated 03.11.2011 and further permission to repair 17 part demolished shops have been considered by department wherein the legal department NDMC vide opinion dated 14.04.2018 has opined as under: “In view of the orders passed by the Hon’ble High Court dated 08.08.2016 in W.P.(C) No.8906 2015 and the detailed note of the department accompanied with order dated 03.11.2011 report of DOI Vigilance Department the department must wait for the outcome of the closure proceedings pending before the Ld. MM RC.REV. 174 2020 Central) Tis Hazari Courts Delhi fixed for 04.06.2018 for consideration on the closure report in FIR No. 854 2014 dated In view of the above the permission to repair 17 part demolished shops is kept in abeyance as per the orders of the competent authority whereby it has been ordered as “in view of the opinion of CLO NDMC whereby the outcome of the closure proceedings before Ld. MM Tis Hazari Delhi 04.06.2018 in FIR dated 28.10.2014 be allowed.” 25. Though no date appears on the letter placed on record a reading of the same shows that it is of a period between February 2018 to June 2018. A perusal of the above letter shows that the Landlord has made repeated attempts to repair the 17 shops which according to the Landlord are part demolished and sealed. In fact even the shutters of the said shops are also stated to have been removed. However the Nr.DMC has rejected the same. The Tenant raises an issue in respect of this letter to argue that while this letter was on the record of the ld. ARC the actual demolition order was not present on record and was only filed with the written submissions. This point is moot inasmuch as the letter of the Nr.DMC extracted above which was on the record of the ld. ARC clarifies the position quite clearly. It clarifies that the Landlord sought permission to repair 17 shops and that the said 17 shops are part demolished. The permission to repair was not granted and was kept in abeyance due to various other pending proceedings. 26. Under such circumstances whether the finding of the ld. ARC that the Landlord did not have an alternate accommodation is correct or not is the simple question. In the opinion of this Court the stand of the Landlord that no other alternate premises are available ought to be tested on the anvil RC.REV. 174 2020 of whether any proper alternate premises are available. The mere fact that the Landlord has certain other premises which are all embroiled in some sort of uncertainty due to sealing demolition would in effect make the said shops unavailable for use of the Landlord. An alternate premises has to be a readily available and usable premises for the nature of operation which the Landlord wishes to conduct. In the present case the Landlord may be a property developer who has purchased this property. It is seeking eviction on the ground that it requires the tenanted premises for its own administrative office. No photographs of an alternate office have been placed on record by the Tenant. The Tenant has also not filed any documents photographs or sketches to show that Shop No.28 is currently being used by the Landlord. The existence on paper of an alternate address cannot mean that bona fide need of the Landlord is met. The Landlord has clearly shown on record that there is no other alternate premises available. This is also the finding of the ld. ARC. Moreover even a perusal of order dated 19th October 2015 passed by the Nr.DMC which is stated to have been filed along with the written submissions clearly shows that demolition orders have been passed in respect of the premises in question. The Landlord continues to wrestle with the NrDMC in respect of the sealing and part demolition. However these orders of the NrDMC are clear evidence that ready availability of a premises is in doubt. 28. The short point that the Tenant attempts to raise is that the demolition order itself was not on record and was filed with the written submissions. This to say the least is a very weak defence. The documents of the Nr.DMC are part of the public record. The demolition order dated 14th 19th RC.REV. 174 2020 October 2015 placed on record of the ARC with the written submissions and before this Court with an application fully reiterates that all the 17 shops are part demolished and not usable. 29. The finding of the ld. ARC is clear and categorical i.e. that the Landlord does not have an alternate premises. The finding of the ARC in this respect is as under: “Availability of alternative suitable accommodation: The present eviction petition has been filed to meet the commercial need of the son of the petitioner. Petitioner had stated that they have no other alternative suitable accommodation to meet the need. The respondent had stated that the first floor of property no. 1597 1598 is available with the petitioner however it is nowhwere shown that the same is lying vacant so as to meet the requirement of the petitioner. Petitioner had stated that shop available in property no. 1598 is not suitable the same could not be contradicted by the respondent with cogent material. Merely having alternate accommodation is not enough. The alternate accommodation should be also sufficient to meet the need of the petitioner for which the eviction petition had been filed. The respondent had failed to discharge the onus in proving that the petitioner has alternate available suitable accommodation. Hence it is held that petitioner has no other alternative suitable accommodation.” 30. This Court is exercising revisional jurisdiction and the law in respect thereof is quite well settled. A complete re appreciation of the evidence is not to be made. The question that the Court needs to examine is whether the approach of the ld. ARC is in accordance with law. This is the legal position as held in the judgments of the Supreme Court in Shiv Sarup Gupta v. Mahesh Chand Gupta 6 SCC 222 and Daya Rani & Anr. v. Shabbir Ahmed has taken a similar view to the effect that mere taking of vague pleas with respect to the availability of an alternate accommodation without disclosing the relevant particulars such as photographs etc. would not disentitle the Landlady therein from obtaining an order of eviction under Section 14(1)(e) of the DRC Act. 33. There is no dispute on facts i.e. the use being made by the Tenant of the tenanted premises. Insofar as the status of Shop No.128 is concerned the NrDMC’s documents clearly show that the premises are either sealed or partly demolished. These two facts being irrefutable no further factual enquiry needs to be made. 34. For every plea raised by the Tenant it cannot be argued that a leave to defend ought to be granted. The Landlord ought to be able to use the premises it finds more convenient. The Landlord cannot be pushed into a situation where it is forced to use the premises as per the Tenant’s diktat. Every defense raised by the Tenant need not be one which requires trial. The untenable pleas of the Tenant also need not be entertained by the Court. 35. This Court is therefore of the opinion that no triable issue arises in the present case. A mere vague plea which is not established on record cannot be the basis for grant of leave to defend. In the absence of a suitable alternative premises for the Landlord due to the existing premises having been sealed or partially demolished the bona fide need of the Landlord is established on record. 36. Both sides have cited a large volume of case law. This Court is of the opinion that the propositions which have been raised are well settled and each of the judgments need not be referred to and distinguished in the RC.REV. 174 2020 present case. 37. Accordingly the petition is rejected. The Tenant is given four weeks’ time to handover peaceful and vacant possession of the tenanted premises to the Landlord. All pending applications are also disposed of. MARCH 5 2021 PRATHIBA M. SINGH J. RC.REV. 174 2020 

Summary: The presence of an alternate land that can be used for accommodation by the landlord cannot by itself be a ground for denying a suit of eviction against the tenant. This was decided in the case of Technological Institute Of Textiles And Sciences Vs. M/S Shree Nath Ji Developers [CRA 782 of 2015] in the High Court of Delhi by Hon’ble Justice Prathiba M. Singh. The facts of the case are that the tenant has been in possession of the tenanted premises, since 1960 i.e., for more than 60 years. The Tenant claims to be a Non-Profit Organization which supports schools, colleges or other educational institutions for the development of education. The present landlord purchased the tenanted premises in 2013 and since then, has made various attempts to evict the tenant and obtain possession of the tenanted premises to open his own office. The landlord moved an application under Section 14(1)(e) of Delhi Rent Control Act, 1958 which states that ‘the eviction of the tenant is permitted for the requirement of the landlord ‘\for occupation as a residence for himself or for any member of his family dependent on him’ seeking eviction of the Tenant. Hence this present petition was filed by the tenant. The contention of the petitioner is that the landlord (respondent here) has another 17 shops and can make use of that for his office and he does not have a bonafide ‘need’ under the aforementioned act to evict the tenant. The counsel for landlord, however, states that he is a property developer who has purchased this property and is seeking eviction on the ground that it requires the tenanted premises for its own administrative office. Moreover, the shops that he owns are under the orders of NrDMC and cannot be used as they are either sealed or prohibited from being repaired. The court observed that the existence on paper of an alternate address cannot mean that bona fide need of the Landlord is met. The Landlord has clearly shown on record that there are no other alternate premises available. Also, the orders of the NrDMC are clear evidence that ready availability of a premises is in doubt. For this it paid reliance of the case of Kailash Kumari &amp; Anr. v. Shakuntala [RC RC.REV. 174/2020], where in it was held that ‘mere taking of vague pleas with respect to the availability of an alternate accommodation, without disclosing the relevant particulars, such as photographs etc., would not disentitle the Landlady therein from obtaining an order of eviction under Section 14(1)(e) of the DRC Act’