Vijender Jain, J.@mdashAggrieved by the dismissal of the petition u/s 14(C)(2) of the Delhi Rent Control Act, (hereinafter referred to as ''Act''), owner-petitioner has filed the present petition.
2. Mr. Ishwar Sahai, learned Counsel appearing for the petitioner, has contended that the Rent Controller has committed a grave irregularity which has manifested into miscarriage of justice by dismissing the petition on the ground that the premises are not required bona finely by the petitioner. Mr. Sahai has contended that the petitioner was borne at Delhi, got education at Delhi and was having his circle of friends in Delhi. It is the case of the petitioner that the petitioner was employed with All India Radio and as such he was transferred to different places. In the rejoinder the petitioner has mentioned the details of his postings from 1962 to 1966 at Delhi, 1966 to 1968 Radio Kashmir, Srinagar, 1968 to 1978 Chandigarh, 1978 to 1982 All India Radio, Shimla, 1982-1991 Delhi, 1991 to 1993 Bikaner and from 1993 to 30.06.1995 at All India Radio, Chandigarh. The petitioner retired on 30.6.1995. Mr. Sahai has contended that the finding of the Rent Controller that as petitioner lived in the house of his father from 1968 to 1978, his daughters went to school at Chandigarh, they were married at Chandigarh, he was residing in his own house at Chandigarh and the house had sufficient accommodation for the petitioner and his family members, Therefore, the need of the petitioner was not bona fide, is perverse. The house at Chandigarh is built upon land measuring 250 sq. yds. whereas the plot area of the house bearing No. 79, Anand Lok, New Delhi is of 318 sq. yds. The Rent Controller came to the finding that the premises were not required bona finely by the petitioner on the ground that unmarried daughter of the petitioner also got her education at Chandigarh and got herself admitted in Computer course about two years ago at Chandigarh and the petitioner was well-settled in Chandigarh since 1968.
3. Mr. Sahai has further contended that the Rent Controller committed error which is apparent on the record of the case in assuming that property No. 23-A, Kamla Nagar, Delhi was the ancestral home of the petitioner. Rent Controller has returned a finding that when the petitioner was posted in Delhi in 1982, he was residing at premises No. 23-A, Kamla Nagar, Delhi and as the petitioner did not shift his family when he was posted at Delhi, that would show that the petitioner had no intention of shifting his family to Delhi. Mr. Sahai has further contended that the finding of the Rent Controller is perverse as a person who was on a job which could be transferable from one station to another, could not have shifted his family during his posting at Delhi from, 1982 to 1991 on account of the fact which has been noted by the Rent Controller that the daughters of the petitioner had already been admitted to schools during his first stay in Chandigarh from 1968 to 1978 and he had an accommodation of his father available at Chandigarh and no prudent person, who knows that his job is transferable, would shift his family to another station during the subsistence of his service. Mr. Sahai assailed the finding of the Rent Controller regarding property No. 23-A, Kamla Nagar, Delhi, which was sold by the petitioner holding mat it showed the intention of the petitioner that petitioner did not want to shift to Delhi at all. This is how the Rent Controller has discussed about the said property:
"......He is the only legal representative of his father. Admittedly, the property bearing No. 23-A, Kamla Nagar, Delhi was sold by the petitioner. This fact has been admitted by the respondent in his cross-examination. In the petition, the petitioner did not mention about the availability of the accommodation at 23-A, Kamla Nagar, Delhi. The petitioner did not mention about the sale of the property and if so, when and to whom and for what consideration. The very fact that the petitioner had sold his ancestral property at 23-A, Kamla Nagar, Delhi which was being used by him for residence in 1962 and from 1983 to 1991 shows that the petitioner never intended to settle at Delhi after his retirement......"
4. Mr. Sahai has taken me to page-44 of the paper book where in the cross-examination of PW-1, it was mentioned that:
"........I was residing at 23A, Kamla Nagar at that time. It was a tenanted house......"
5. Mr. Sahai has contended that when the house No. 23-A, Kamla Nagar, Delhi was a tenanted house, the finding of the Rent Controller based on the assumption that said property was an ancestral property available to the petitioner completely shows the perversity of the approach of the learned Rent Controller.
6.Mr. Sahai has contended that when the house No. 23-A, Kamla Nagar, Delhi was a tenanted property there was no question of its being sold by the petitioner. Regarding other property bearing No. 95 UV, Kamla Nagar, Delhi, the Rent Controller returned the finding that property was sold in 1991 and it showed that the petitioner had never intended to settle at Delhi. Mr. Sahai has again taken me to the cross-examination of PW-1 and stated that it was stated in the cross-examination that the said property No. 95 UV, Kamla Nagar, Delhi was a residential-cum-commercial property in Kamla Nagar and in that property petitioner could not have resided since it was all occupied. Mr. Sahai has contended that non-filing of eviction petition in relation to the tenants at property No. 95 UV, Kamla Nagar, Delhi and selling of that property would not amount to abandoning the case of the petitioner to settle in Delhi and the finding of the Rent Controller on this score also is untenable. Mr. Sahai has contended that the finding of the Rent Controller that the premises were not required by the petitioner at Delhi bona finely for his residence in view of the fact that he has lived in Chandigarh comfortably, is contrary to the law laid down by the Supreme Court in
"........To deprive a landlord of the benefit of the ground mentioned in Section 14(1)(e) on account of availability of alternative residential accommodation, it is not enough that such alternative accommodation is in a far different State. Such accommodation must be available in the same city or town, or at least within reasonable proximity thereof if it is outside the limits of the city. The said limb of Clause (e) cannot be interpreted as to mean that if the landlord has another house anywhere in the world, he cannot seek recovery of possession of his building under Clause (e). The High Court Therefore went wrong in observing that since the landlord has possession of another flat at Calcutta she is disentitled to seek recovery of possession of the tenanted premises situated at Delhi."
7. Mr. Sahai has also cited
"It is evident from the pleadings that the petitioner and her husband at the time'' the impugned order was passed on March 30, 1993 were about 75 years of age. The family comprised of herself, her husband, son, daughter-in-law and two children, two other sons who are alleged to be string at Meerut and Shimla and a married daughter. The learned Controller has primarily highlighted the fact that the petitioner has not proved that she intended to shift to Delhi as she was comfortably based in Meerut, and if all the family members are residing at Meerut or Shimla, there was no possibility of the petitioner and her husband to shift to the property in question. It was further held that the petitioner and her husband who are over the ages of 75 years were not expected to shift to Delhi from Meerut all of sudden particularly, when, admittedly, other son of the petitioner Rajinder Kumar Kakkar who was a Consolidation Officer in U.P. joined Bar at Meerut after his retirement and the wife of another son Satinder Kumar Kakkar was, admittedly, employed as teacher in Meerut where she was residing with her husband and two children."
8. Mr. Sahai has further contended that it was brought on record that before retirement the petitioner had written to his Department that his pension be sent at Delhi. He has specifically invited my attention to Ex. PW-1/10, which is a letter from Pay and Accounts Office, Ministry of Information and Broadcasting addressed to Pay and Accounts Officer, Central Pension Accounting Office, Ministry of Finance, dated 3.7.1995 wherein the name of the bank where the pension was to be remitted, was Punjab National Bank, Kamla Nagar, Delhi. On the basis of Ex.PW-l/10, Mr. Sahai has contended that it was the intention of the petitioner to settle in Delhi and that is why even prior to his retirement he has given the address available for sending his pension to Punjab National Bank, Kamla Nagar, Delhi in which the petitioner had an account right from 1968.
9. On the other hand, Mr. Dinesh Garg, learned Counsel appearing for the respondent has vehemently contended that if there are two views which can emerge from the pleadings of the parties and one view has been taken by the Rent Controller, the Court while exercising revisional jurisdiction comes to a different view still the Revisional Court will not upset the finding of the Rent Controller. Mr. Garg has contended that the petitioner has not pleaded anything in the eviction petition and from stage to stage he had gone on improving his case. He has further contended that the argument advanced by the learned Counsel for the petitioner that Sarla Ahuja''s case (supra) was applicable, is not correct. Mr. Garghas contended that in Saria Ahuja'' case (supra) the Supreme Court set aside the finding of the learned Single Judge of this Court in view of the fact that the flat in which the petitioner-owner was living at Calcutta was on the third floor and the premises at Delhi were on the ground floor and he has contended that, Therefore, the ratio of Sarla Ahuja''s case (supra) was not applicable to the case of petitioner. In support of his contentions that this Court in the revisional jurisdiction will not set aside the finding of fact, learned Counsel for the respondent has cited the cases of
10. Mr. Garg has defended the judgment of the learned Rent Controller on the ground that the accommodation available at Chandigarh was sufficient and was more spacious than the accommodation available at Anand Lok, New Delhi. Mr. Garg defending the judgment of the Rent Controller, which draws inference as to why the petitioner did not deem it fit to settle at Delhi in 1968, has contended that the petitioner was never interested in living at Delhi. Mr. Garg has further argued that the petitioner did not mention in the petition that he had any chance of re-employment at Delhi and, Therefore, his desire to shift to Delhi is not genuine. In support of his contentions, Mr. Garg has cited Sree Balaji Krishna Hardware Stores v. Srinivasaiah 1998 (1) RCJ 230, Shri Virendra Pal v. Sri Daljit Singh Sandhu 1978 (1) RCJ 365,
11. Let me first deal with the arguments of the respondent that petitioner has not taken any steps to shift to Delhi. I am afraid that there is no force in the arguments of the learned Counsel for the respondent. A person whose property is occupied by a tenant, before retirement what steps he can take. He has filed eviction petition in May, 1995. He has Written to his Department that his pension be paid to him after retirement at Delhi. The arguments of the learned Counsel for the respondent that he should obtain a ration card or he should have brought his family to Delhi prior to getting accommodation in Delhi, have no merits. Learned Counsel for the respondent has also pointed out certain discrepancies from the statement of the petitioner. To my mind, there is no such discrepancy which would lead to show that requirement was not bona fide.
In Sarla Ahuja''s case (supra) it was held:
The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima fade case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself.
Facts such as the cordial relationship between a landlord and his daughter-in-law or that he is comfortably residing in the present building are not relevant in judging the bona fides of the claim of the landlord. Otherwise it would appear that the landlord can think of residing in his or her own residential building only when cracks develop in the relationship between him and his kith and kin."
11. In
"The proven facts are that the appellant who is a widow, since the demise of her husband late Shiv Nath Mukherjee, has been staying as a guest with Shri N.C. Chatterjee who was a family friend of her late husband, at B-4/20, Safdarjang Enclave, New Delhi. There is nothing to show that she has any kind of right whatever to stay in the house of Shri Chatterjee. On the other hand, she is there merely by sufferance. The reason given by the High Court that the appellant is an old lady aged about 70 years and has no one to look after her and Therefore she should continue to live with Shri Chatterjee, was hardly a ground sufficient for interference. The landlord is the best Judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. Now, that is a look out of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bana fide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances."
12. I do not see any force in the arguments of the learned Counsel for the respondent that if this Court comes to a different conclusion than that of the Rent Controller, then the proper remedy is not to interfere with the finding of the Rent Controller but, at best, can remand the case back to the Rent Controller. In my opinion, to do so would mean to thwart the course of justice. The Legislature in its wisdom has created specialised categories of landlords, who can get an order of eviction if they fall in such categories. The petitioner being a retired Government servant cannot be made to wait for years to get his house vacated for his own need. While dealing with the arguments of the learned Counsel for the respondent that the Revisional Court has no jurisdiction to interfere with the finding of the Rent Controller, the Supreme Court had the occupation to consider this issue in Ram Narain Arora v. Asha Rani and Ors. 75 (1998) DLT 159 (SC), and Their Lordships in the Supreme Court answered:
"It is no doubt true that the scope of revision petition u/s 25B(8) proviso of the Delhi Rent Control Act is very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order to find out whether he had correctly or on firm legal basis approached the matters on record to decide the case. Pure findings of fact may not be open to be interfered with, but, in a given case the finding of fact is given on a wrong premise of law, certainly it would be open to the Revisional Court to interfere with such a matter. In this case, the Rent Controller proceeded to analyze the matter that non-disclosure of a particular information was fatal and, Therefore, dismissed the claim made by the landlord. It is in these circumstances it became necessary for the High Court to re-examine the matter and then decide the entire question. We do not think that any of the decisions referred to by the learned Counsel decides the question of the same nature with which we are concerned. Therefore, detailed reference to them is not required."
13. I am afraid that the authorities cited by the learned Counsel for the respondent i.e. Hiralal Kapur v. Prabhu Choudhary (supra) and S.I. Efanezer v. Velayudhan and Ors. (supra), are of no help to the respondent. Here is a case where there is an error apparent on the record. While cross-examining the respondent it was brought on record that property No. 23-A, Kamla Nagar, Delhi was a tenanted property whereas the whole discussion of the Rent Controller revolves around this property taking this property to be the ancestral property of the petitioner. Similar is the case with regard to the other property No. 95 UV, Kamla Nagar, Delhi. That entire property was occupied by the tenants and no accommodation was available to the petitioner herein. Drawing adverse inference by the sale of property No. 95 UV, Kamla Nagar, Delhi that the petitioner had no intention to settle at Delhi as well as drawing adverse inference on account of property No. 23-A, Kamla Nagar, Delhi although it was a tenanted property in the hands of the mother of the present petitioner and basing his judgment that it was the ancestral property, the Rent Controller has committed a material irregularity and on this score alone the revision petition can be allowed.
14. A learned Single Judge of this Court in the case of Daljit Singh v. Cdr. Bipin Kumar Sharma 1998 5 AD (Delhi) 498 : 73 (1998) DLT 353, and another learned Single Judge of this Court in T.C. Rekhi v. Smt. Usha Gujral 1970 RCR 292, took the view that:
"The fact that the husband of the landlady has accommodation in Lucknow, is also unhelpful to the appellant because if the family wants to live in Delhi, it can on no reasonable stretch be urged that the accommodation with the husband at Lucknow would be reasonably suitable residential accommodation excluding applicability of Clause (e) proviso to Section 14(1). This provision is not intended to compel landlords not to shift to the town in which they have a residential accommodation which is leased out to tenants merely because they may have some residential accommodation in some other town in which they do not want to live any longer. The tenant, cannot in my opinion, decline to vacate the premises bona fide required by the landlord for his residence merely because it is possible for him to live in some other town where he may have a residential accommodation available. Such does not seem to me to be the purpose and object of Act and the statutory scheme does not lend support to such intendment. The legislative history to which a passing reference has been made by Shri Kapur has also not induced me to hold to the contrary."
15. From the aforesaid discussions, I am of the considered opinion that the learned Rent Controller committed an error in holding that the requirement of the petitioner was not bona fide. It would be making a mockery of law if a Government Servant, who was retired in 1995, is again asked to go back before the Rent Controller to consider the matter afresh. I Therefore, allow the petition, quash the impugned order and pass an order of eviction in favor of the petitioner and against the respondent. However, in the facts and circumstances of the case, I grant two months'' time to the respondent to vacate the premises in question.
