Santosh Bhutani & Anr. v. Savitri Devi Through LRs

(i) The petition under section 14(1)(e) is maintainable in respect of property which is commercial in nature; in this regard, reliance has been placed on the judgements in Vinod Kumar vs. Ashok Kumar Gandhi[1], State of Maharashtra vs. Super Max International (P) Ltd.[2] and Satyawati Sharma vs. Union of India.[3]

(ii) It is submitted that the bonafide need of the landlord has to be seen as of the date of institution of the eviction proceedings; in this regard reliance has been placed on the judgement in the case of Hukum Chandra vs. Nemi Chand Jain[4].

(iii) It is strenuously urged that the landlord has an absolute choice of premises with which he wishes to fulfil his requirement; reliance in this regard has been placed on the judgement in the case of W.H Brady & Co. Ltd. vs. Sarita Jain[5]

(iv) It is emphasized that it is not permissible for a tenant to dictate terms to the landlord as to how he should adjust himself without getting the tenanted premises vacated; reliance in this regard has been placed on the judgement of Sarla Ahuja vs. United India Insurance Co. Ltd.[6]

(v) It is contended that the factual controversy sought to be raised by the petitioners as regards availability of sufficient alternate accommodation is unfounded. It is submitted that the petitioners have failed to prove that the respondents have any other vacant, suitable alternate accommodation. The respondents have disclosed the status of each and every property referred to by the petitioners and the correct position is stated to be as under:a. Shop No. 192, Gali Bandook Wali, Ajmeri Gate, Delhi-

110006. –This shop is stated to be in use by Mr Naresh Kumar for maintaining a godown. b. Shop No. 193, Gali Bandook Wali, Ajmeri Gate, Delhi- 110006 - This shop is stated to be in possession of “M/s. Ganpati Fasteners” In this regard reliance is placed upon the testimony of RW-1 (Smt. Santosh Bhutani), to the effect that Shop No. 193, is in possession of M/s. Ganpati Fasteners as “tenant.”

1998 (8) SCC 119 c. Shop No. 200, Ajmeri Gate, Delhi-110006 - This shop is being used by Mr Naresh Kumar for running a shop dealing in confectionery items. It is stated that the said fact is mentioned in the additional affidavit of examination-in-chief of PW-5 (Mr. Naresh Kumar), which fact was not disputed during his cross examination. d. Shop No. 216, Gali Lohran, Ajmeri Gate, Delhi-110006 - It is stated that the said shop is owned by Sh. Jag Prasad Tiwari, being proprietor of M/s. J.P. Tools Supply Agency. In this regard reliance is placed on the testimony of PW-3. e. Shop No. 160/308, Shyam Shanti Market, Ajmeri Gate, Delhi- 110006 - It is stated Sh.Pradeep Goel, being proprietor of M/s. Chintamani Industrial Agencies, has been running a business of hardware goods in the said shop, as a tenant under one Smt. Sunita & Smt. Madhu and the respondents have no concern with the said shop. In this regard reliance is placed on the testimony of PW-4. f. 352, Katra Sheikh Ranjha, Delhi-110006 - It is stated that five shops forming part of the property were sold in 2022 and one godown on the ground floor of the said property is on tenancy. It is stated that two rooms on First Floor and one room on Second Floor in the said property were residential in nature and no evidence has been led to contradict the said fact.

(vi) Learned counsel for the respondents has also stated that PW-5 was not put to any cross examination on the envelope addressed to “Pinki General Store”, at Shop No. 200; as such reliance thereupon to dispute the bonafide requirement for Sushil Kumar is misconceived. It is further stated that M/s. Pinki Super Store stood closed and its registration was cancelled on 30.09.2003 i.e. more than 8 years prior to filing of the present eviction petition on 29.11.2011, as is evident from the dealer profile of M/s. Pinki Super Store.

(vii) It is submitted that non-examination of the person for whose need the tenanted premises is required is no ground to non-suit the landlord; in this regard reliance has been placed upon the judgement in the case of Mehmooda Gulshan vs. Javid Hussain Mungloo[7] ANALYSIS AND CONCLUSION

7. Having perused the record and having heard learned counsel for the parties, no merit is found in the contentions raised on behalf of the petitioners.

8. With respect to the contention of the petitioners that Section 14 (1)(e) of the DRC Act is applicable only to residential premises and not to commercial premises, the law is well settled that Section 14(1)(e) of the DRC Act is applicable to tenanted premises let out for commercial purposes as well. In this regard, respondents have rightly relied upon the judgment in the case of Satyawati Sharma (supra). The relevant observations in the said judgment are extracted hereunder:-

9. With regard to contention of the petitioners [based upon telephone connections in the name of Mr. Sushil Kumar] that Mr. Sushil Kumar is already running business from Shop No. 216, and Shop No. 160/308, the learned rent controller, based on the testimony of PW-3 and PW-4, has rendered a finding in para 19 (ii) of the impugned order (supra) that Mr.Sushil Kumar is neither in possession of the said shops nor is he running any business from there. The said finding is based on a proper appraisal and appreciation of the material on record. From the statement/examination-inchief and cross-examination of PW-3 and PW-4, it clearly emerges that Shop No. 216 and Shop No. 160/308 are not in possession and ownership of the respondents. PW-3 was Mr. Jag Prasad Tiwari, who produced a registered sale deed in his favour in respect of the said Shop No. 216. Both PW-3 and PW-4 made a statement that Mr. Sushil Kumar has no connection with the business being carried on by them from the concerned premises. In the cross-examination, it was stated that the bills of telephone connection have been paid by PW-3 and PW-4 since inception. No independent evidence was adduced by the petitioners to prove that Mr. Sushil Kumar carries on business from the Shop No. 216 and Shop No. 160/308. In view thereof, no exception can be taken to the finding rendered in the impugned judgment that Mr. Sushil Kumar is neither in possession of said shops nor is running any business from there.

10. With regard to contention of the petitioners that Mr. Sushil Kumar was running a business in Shop no. 200, in the name and style “Pinki Super Store” with his brother Mr. Kulbhushan [who died in August, 2013] and since then Mr. Sushil Kumar has been running the said business, the impugned judgment notes as follows:- “RW-2 proved that M/s Pinky Superstore was previously operating from shop No. 200, Ajmeri Gate, Delhi, however, it stands closed, as its registration was cancelled on 30.09.2003. xxx xxx xxx It is stated in the written arguments by the petitioners that after demise of their sister, now the confectionery business from shop No.200 is carried-on by the petitioner No.1 and shop no. 192 is used as godown for storing the confectionery items. Petitioner No.2 is still unemployed. The same has not been rebutted-by the respondents.”

11. Learned counsel for the petitioners has relied on an envelope sent in the name of “Pinki Super Store” to contend that the said store was being run from Shop No. 200. It is further submitted that certificate/dealer profile of “Pinki Super Store” mentions the date of cancellation as 30.09.2003 while date of registration is later in point of time i.e. 01.04.2005, thus, it is contended that the said certificate cannot be relied upon. It is further submitted that the Sales Tax number in the name of “Pinki Super Store” was active and the same was surrendered in January 2017 much after filing of the eviction petition.

12. PW-5 [Naresh Kumar] in his evidence affidavit has deposed that the Shop No. 200 was in possession of his brother Sh. Kulbhushan, who was running his business from there and after his death, the business was being run by his sister, Ms Kapila. In the additional evidence affidavit, it was further deposed that after the death of her sister, PW-5 has shifted his business from Shop No. 192 to the said Shop no. 200 and the Shop No. 192 is now being used as a godown. During the cross-examination it was deposed by PW-5 that he is running a confectionery shop from Shop NO. 200. PW-5 has also annexed bills of business being carried out from Shop no. 200 marked as Ex. PW-5/R-1 (OS&R), which stand duly proved in trial. The name of the store mentioned in the bills evidently is “K B Stores”. During cross-examination of PW-5, it has further been stated as under:- “The name of the business run by Sh. Kulbhushan was K.B. Store. Question: What does (K.B.) stands for? Answer: K.B. stands for Kulbhushan. It also stands for Kapila Bhushan. Sh. Kulbhushan has been doing business prior to year 2000 and did till his death. …. Sh. Kulbhushan used to run his business on his own. It is incorrect to suggest that Sh. Kulbhushan used to be assisted by his brother Sh. Sushil Kumar, in his business. It is also correct that Ms. Kapila never used to assist Sh. Kulbhushan in his business. It is incorrect to suggest that as today Sh. Sushil Kumar is doing business from Shop No. 200, Ajmeri Gate, Delhi from where Sh. Kulbhushan used to run his business during his life time.....”

13. It was, thus, proved in trial that the store in the name and style “K B Stores” was being operated from the Shop no. 200. Moreover, the store was being operated by Mr. Naresh Kumar [PW-5] and not by Mr. Sushil Kumar, for whose bonafide necessity the present petition has been filed.

14. The petitioners in the present petition again seek to rely on the aforesaid envelope sent in the name of “Pinki Super Store” to contend that the said store is being run from Shop No. 200. The said envelope was taken on the record of the trial court pursuant to order dated 05.09.2017 passed by this Court in CM(M) No.963/2017. However, the petitioners have not crossexamined PW-5 on the aspect of envelope during the trial even after additional evidence affidavit came to be filed by Naresh Kumar [PW-5] on 14.02.2019. Even otherwise, the said envelope does not in any manner prove that a store in the name of “Pinki Super Store” was being run by Mr. Sushil Kumar from Shop No. 200, when eviction petition was filed. Further, the certificate/dealer profile, which the petitioners contend should be disregarded, has been tendered in evidence by the petitioners‟ witness marked as Ex. RW-3/1. The same also does not prove that a store in the name of “Pinki Super Store” was being run from Shop No. 200 when eviction petition was filed. In view thereof, the rent controller rightly came to the conclusion that Mr. Sushil Kumar was not working/ carrying on business from Shop No. 200.

15. Learned counsel for the petitioners has further contended that Shop no. 193 was rented out by the respondents to “Ganpati Fastener” in March 2013 and thus the said shop was vacant when the eviction petition was filed. It is further contended that the sales tax information of “Ganpati Fasteners” shows that the sale tax number of the said business was surrendered in the year 2017 and the shop was handed over to the respondents. With regard to this shop, the impugned judgment notes as under:- “It is clearly stated by the petitioners that they have shops under their ownership i.e. Shop No.192-193, Gali Bandook Wall, Ajmeri Gate, Delhi, however, petitioner No. 1 is running his business from Shop No. 192 whereas Shop No. 193 is under tenancy & 'occupation of Sh. Rajeshwar Kalra, who is running business under name & style of M/s Ganpati Fasteners. Respondent No.l has admitted during her testimony as R'W-1 that shop No. 193. Gali Bandobk Wall. Aimed Gate. Delhi is in possession of M/s Ganpati Fasteners. as tenant. It has also not been specifically denied by the respondents that shop NO. 192, Gali Bandook Wali, Ajmeri Gate, Delhi is in possession of petitioner no.l from where he is running his business.”

16. The aforesaid finding of the rent controller is based on a correct appraisal and appreciation of the evidence of record. The relevant extract of the RW-1‟s cross-examination, is as under:- “It is correct that shop bearing no. 193, Gali Bandook Wali is in possession M/s. Ganpati Fasteners as tenant.”

17. The contention of the petitioners that the Shop No. 193 was vacant when the eviction petition was filed appears to have not been raised before the rent controller. No evidence has been led on the said aspect by the petitioners. In fact, in the evidence affidavit of PW-5 dated February, 2016, it was stated as under:- “7........shop No. 193 is in the possession of one tenant namely Rajesliwar Kalra, who is running the business from the said shop under the name and style of “Ganpati Fastners” for the last more than seven years.”

18. However, there was no cross examination of PW-5 with respect to the above aspect. Again, the submission of the petitioners that the said shop NO. 193 was surrendered to the respondent in 2017 is not borne out from the material on record; mere surrender of the sale tax number of the said business in the year 2017 cannot lead to such conclusion.

19. The law is well settled that a tenant cannot dictate to the landlord as to how he should accommodate itself, or dictate to the landlord his choice of accommodation. This position has been reiterated in numerous of judgments of the Supreme Court. In Anil Bajaj v. Vinod Ahuja[8], it has been held as under: “...what the tenant contends is that the landlord has several other shop houses from which he is carrying on different business and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business.”

20. In Shiv Sarup Gupta Vs. Mahesh Chand Gupta (Dr)9, it has been “Once the court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court."

21. In Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal10, it has been held as under: “It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business.”

22. In Prativa Devi (Smt.) Vs. T.V. Krishnan11, it has been held as under:- “The landlord is the best judge of his 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 standard of their own.”

23. In Sarla Ahuja Vs. United India Insurance Co. Ltd12, it has been “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

AIR 1999 SC 100 requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.”

24. With regard to the alleged availability of Property no.352, Katra Sheikh Ranjha, Delhi-110006, the impugned judgment renders the following finding:- “It has been also stated that shop at 352, Katra Sheikh Ranjha, Hauz Qazi, Delhi is under tenancy of Sh. Gur Dev Prasad and rest of the premises is used as residence, being non-commercial in nature, which has not been denied specifically by the respondents.”

25. The aforesaid finding of the rent controller is also based on, and consistent with the pleadings/evidence on record.

26. The petitioners have further sought to assert that Mr. Sushil Kumar [for whose bonafide necessity the present petition has been filed] is not capable of running a business due to impaired vision. This submission, besides being contrary to the assertion that the said person is running multiple businesses from multiple shops, is most reprehensible and deserves to be rejected outright. Mere disability of a person does not deprive such a person of his constitutional right to practise any profession, or to carry on any occupation, trade or business. This submission on behalf of the petitioners not only undermines sacrosanct constitutional principles, it also runs afoul to the objectives and provisions of the Rights of Persons with Disabilities Act, 2016.

27. In Union of India & Anr. vs. National Federation of the Blind & Ors.13, the Supreme Court held as under:-

28. In Vikash Kumar vs. UPSC & Ors.14, the Supreme Court held as under:-

41. Part III of our Constitution does not explicitly include persons with disabilities within its protective fold. However, much like their able-bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force and vigour to the disabled. The 2016 RPwD Act seeks to operationalise and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance.

42. The fundamental postulate upon which the 2016 RPwD Act is based is the principle of equality and non-discrimination. Section 3 casts an affirmative obligation on the Government to ensure that persons with disabilities enjoy: (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution. By recognising a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfilment of the constitutional rights of persons with disabilities.

43. There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalised groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. This Court in its judgment in Jeeja Ghosh v. Union of India [Jeeja Ghosh v. Union of India, (2016) 7

SCC 761: (2016) 3 SCC (Civ) 551], noted that a key component of equality is the principle of reasonable differentiation and specific measures must be undertaken, recognising the different needs of persons with disabilities, to pave the way for substantive equality. A.K. Sikri, J. stated in the above judgment: (SCC p. 793, para 40)

44. The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. The concept of reasonable accommodation is developed in section (H) below. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them. Reasonable accommodation is the instrumentality— are an obligation as a society—to enable the disabled to enjoy the constitutional guarantee of equality and non-discrimination. In this context, it would be apposite to remember R.M. Lodha, J's (as he then was) observation in Sunanda Bhandare Foundation v. Union of India [Sunanda Bhandare Foundation v. Union of India, (2014) 14 SCC 383: (2015) 3 SCC (L&S) 470; Disabled Rights Group v. Union of India, (2018) 2 SCC 397: (2018) 1 SCC (L&S) 391], where he stated: (SCC p. 387, para 9)

G.2. Scheme of the 2016 Act xxx xxx xxx

54. This Court in Union of India v. National Federation of the Blind [Union of India v. National Federation of the Blind, (2013) 10 SCC 772: (2014) 2 SCC (L&S) 257] has recognised that employment opportunities play an instrumental role in empowering persons with disabilities. P. Sathasivam, J. (as he then was) observed: (SCC p. 799, para 50)

It is imperative that not only the Government but also the private sector takes proactive steps for the implementation of the 2016 RPwD Act.

55. The 2016 RPwD Act is fundamentally premised on the recognition that there are many ways to be, none more “normal” or “better” than the other. It seeks to provide the disabled a sense of comfort and empowerment in their difference. Recognising the state of affairs created by centuries of sequestering and discrimination that this discrete and insular minority has faced for no fault on its part, the 2016 RPwD Act aims to provide them an even platform to thrive, to flourish and offer their unique contribution to the world. It is based on the simple idea with profound implications that each of us has:“unique powers to share with the world and make it interesting and richer”. [ Sonia Sotomayor, Just Ask! Be Different, Be Brave, Be You [2019, Penguin] letter to the reader.] By opening doors for them and attenuating the barriers thwarting the realisation of their full potential, it seeks to ensure that they are no longer treated as second class citizens.

56. It gives a powerful voice to the disabled people who, by dint of the way their impairment interacts with society, hitherto felt muted and silenced. The Act tells them that they belong, that they matter, that they are assets, not liabilities and that they make us stronger, not weaker…..”

29. Thus, it would be wholly retrograde, and in derogation of the constitutional guarantees under Articles 14, 19 & 21, to deny the right of a person suffering from any disability, to carry on any trade or business. As such, the alleged low vision/disability of Mr.Sushil Kumar cannot undermine his bonafide necessity for the premises in question, for the purpose of carrying on his business.

30. With regard to the contention of the petitioners that Mr. Sushil Kumar for whose bonafide requirement the eviction petition was filed, did not lead any evidence/ give his own testimony, the law is well settled that mere nonexamination of the person for whose need the tenanted premises is required by itself is no ground to non-suit the landlord, in case he has otherwise established a bonafide need. In this regard, reference is apposite to the judgment in the case of Mehmooda Gulshan vs. Javaid Hussain Mungloo (supra), wherein it has been held as under:- “18. In C. Karunakaran v. T. Meenakshi [C. Karunakaran v. T. Meenakshi, (2005) 13 SCC 99], one issue which arose for consideration was whether non-examination of the person for whose need the building was required was fatal. It was held that “mere non-examination of the person for whose need the building was required by itself was no ground to non-suit the landlady”. To quote: (SCC p. 101, para 5) “5. … Mere non-examination of the person for whose need the building was required by itself was no ground to non-suit the landlady. In a number of decisions (this fact is acknowledged by the first appellate court also), it has been held that it is not necessary to examine the person for whose need the premises are required. It depends on the facts and circumstances of each case.”

19. In Gulraj Singh Grewal v. Harbans Singh [Gulraj Singh Grewal v. Harbans Singh, (1993) 2 SCC 68], this Court had an occasion to see whether a landlord can be non-suited on the ground of non-examination of the son for whose benefit the premises are sought to be vacated. This Court held that in case the need has otherwise been established in evidence, the non-examination is not material. At the best, it is only a matter of appreciation of evidence. To the extent relevant, para 8 reads as follows: (SCC p. 72) “8. The learned counsel for the appellant submitted that the personal need found proved is only of Respondent 2, son of Respondent 1, who did not enter the witness box and, as stated in an affidavit filed in this Court, even he is carrying on his profession at a place about 25 km away from Ludhiana, in our opinion, this finding of fact is unassailable. The High Court has clearly observed that no meaningful argument could be advanced on behalf of the appellant to challenge this finding of the appellate authority. Respondent 1 who is the father of Respondent 2, has supported and proved the need of Respondent 2, who also is a landlord. The fact that for want of suitable accommodation in the city of Ludhiana, Respondent 2 is at present carrying on his profession at some distance from Ludhiana is not sufficient to negative the landlord's need. In these circumstances, the nonexamination of Respondent 2 also, when Respondent 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter relating only to appreciation of evidence, on which ground this finding of fact cannot be reopened.”

20. Thus, the question is whether there is a reasonable requirement by the landlord of the premises. This would depend on whether the landlord has been able to establish a genuine element of need for the premises. What is a genuine need would depend on the facts and circumstances of each case. Merely because the landlord has not examined the member of the family who intends to do business in the premises, he cannot be non-suited in case he has otherwise established a genuine need. The need is a matter of appreciation of evidence, and once there is no perversity in the appreciation of evidence on the need, the said finding of fact cannot be reopened. It may be crucially relevant to note that the eviction is not sought on the last limb of Section 11(1)(h) of the Act, namely, “for the occupation of any person for whose benefit the house or shop is held”. The premises sought to be evicted is not held for the benefit of the son alone, but the whole family. It is for the own occupation of the landlord. It has been established in the facts of this case that the landlord was not happy and content with the paltry rent received from the premises. The landlord intended to engage her son in the business at the premises. It is for the landlord to decide as to the best use the premises should be put to. There is nothing wrong on the part of a landlord in making plans for a better living by doing business engaging her son. Having regard to the background of the son who is unemployed and undereducated, the appellant was able to establish that business was the available option and the tenanted premises was the only space available. Thus, the genuine need for the premises has been established. Unfortunately, the High Court has missed these crucial aspects.”

31. It may also be noted that RW-1 [Smt. Santosh Bhutani] during crossexamination has stated as under:- “I can not point out the documents which shows that petitioners are not having any bonafide need.”

32. The contention that the petitioners may be allowed to run their business from the tenanted premises till another shop, in respect of which the petitioner no. 1 herein is the landlord, is vacated by the tenants thereof, is also liable to be rejected. In Bosco Joseph vs. Raj Kumar15, this court has

33. The Supreme Court, in Abid-Ul-Islam vs. Inder Sain Dua16 has emphasised that the scope of interference in revisional jurisdiction is very restricted, and except in cases where there is an error apparent on the face of the record, this court would not proceed to disturb the findings rendered by the rent controller. In this regard reference has been made to the following observations in the said judgement:-

2022 SCC OnLine Del 2029: (2023) 1 RCR (Rent) 149

34. In the facts and circumstance of the present case, the impugned eviction order does not merit any interference in exercise of revisional jurisdiction under Section 25B (8) of the DRC Act.

35. As such, no merit is found in the present petition and the same is accordingly dismissed.

36. All pending applications also stand disposed of.

SEPTEMBER 14, 2023/ r/ hg SACHIN DATTA, J