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Judgment
The present Petition, filed under Section 25-B(8) of the Delhi Rent Control Act, 19581, assails Judgment dated 06.09.20222 passed by the learned SCJ-cum-Rent Controller (Shahdara District), Karkardooma Courts, Delhi3, in Eviction Petition No. 297/164, titled“Satya Narain & Anr. v. Smt. Kamlesh Arora & Ors.”, whereby the learned RC has dismissed, after a trial, the Eviction Petition, filed by the Petitioners, seeking eviction of the Respondents from Shop No.1, Ground Floor, Property bearing No. 493, Laxmi Market, Teliwara, Shahadra, Delhi-1100325.
SUBMISSIONS ON BEHALF OF THE PARTIES:
Mr. Rajesh Yadav, learned Senior Counsel appearing on behalf of the Petitioners, assails the findings returned by the learned RC on primarily two grounds, viz., firstly, that the learned RC has erred in holding that the daughter-in-law of Petitioner No. 16, for whose requirement the premises were sought, was required to be financially dependent upon Petitioner No. 1 for her sustenance; and secondly, that the learned RC has erred in returning a finding that an alternative suitable accommodation, in the form of Shop No. 8 Ground Floor, Property bearing No. 493, Laxmi Market, Teliwara, Shahadra, Delhi-1100327, was lying vacant and in the possession of the Petitioners.
Learned Senior Counsel for the Petitioners, in support of the first limb of the challenge, submits that the learned RC proceeded on an erroneous premise in requiring the Petitioners to establish that the daughter-in-law, for whose benefit the premises were sought, was financially dependent upon Petitioner No. 1. He submits that the learned RC placed particular emphasis on the fact that Petitioner No. 1 had not disclosed the then prevailing financial or employment status of his son, Sh. Nitish Sharma, the husband of the daughter-in-law, and consequently proceeded on the premise that the Petitioners were required to establish that her husband‟s earnings were insufficient so as to demonstrate her dependence upon Petitioner No. 1.
Learned Senior Counsel for the Petitioners submits that such an approach proceeds on a legally erroneous understanding of the parameters governing bona fide requirement. It is contended that the dependence of the person for whose benefit the premises are sought cannot be construed as being confined to financial dependence alone for the purpose of establishing the bona fide requirement of the landlord. The mere fact that the daughter-in-law has a husband who is earning, or that the financial circumstances of her husband have not been specifically established, cannot, by itself, negate the bona fide requirement pleaded by the Petitioners for her benefit.
In support of the aforesaid submission, learned Senior Counsel places reliance upon the Judgment of a Coordinate Bench of this Court in Charanjeet Singh v. Vivek Jain8, particularly Paragraph Nos. 11 to 14 thereof, as also the Judgment of a Coordinate Bench of this Court in Hari Shankar Rastogi v. Allahabad Bank9, in particular Paragraph No. 13 thereof. It is submitted that the aforesaid decisions recognize that dependence, in the context of bona fide requirement under Section 14(1)(e) of the DRC Act, cannot be confined to financial dependence and that the financial independence of the person for whose benefit the premises are required does not, by itself, negate the bona fide requirement of the landlord.
Learned Senior Counsel thus submits that the very premise on which the bona fide requirement of the Petitioners has been negated is contrary to the settled position in law and that the Impugned Judgment, therefore, warrants interference by this Court.
Learned Senior Counsel for the Petitioners, in support of the second limb of the challenge to the Impugned Judgment, submits that the learned RC has erred in holding that Shop No. 8 constituted reasonably suitable alternative accommodation available to the Petitioners, without adequately considering the material on record concerning its actual use and particularly its location vis-à-vis the suggested bona fide requirement.
Learned Senior Counsel for the Petitioners submits that, even according to the case of the Respondents elicited during cross-examination, Shop No. 8 was being used for storing goods and was not lying vacant and available for the commercial requirement pleaded by the Petitioners. He further submits that the site plan placed on record, read with the averments contained in the Eviction Petition, particularly Paragraph No. 8(xvi) thereof, demonstrates that Shop No. 8 could not, in the facts of the present case, be regarded as a reasonably suitable alternative accommodation.
Learned Senior Counsel further submits that the Petitioners had specifically pleaded their preference for the subject premises on account of its location and physical attributes, the same being a two-sided open-front shop and, consequently, having greater visibility and the potential to attract a larger number of customers. In contradistinction, Shop No. 8 is situated in the rear portion of the building and does not possess the same commercial advantages. It is, therefore, contended that the mere existence of another premises in the ownership or possession of the Petitioners cannot, by itself, render the same “alternative suitable accommodation” unless its suitability for the specific requirement pleaded is also established.
Learned Senior Counsel thus submits that the learned RC has failed to consider the aforesaid material aspects, which went directly to the question of suitability of Shop No. 8, and has consequently returned a finding of availability of alternative suitable accommodation without examining whether such accommodation was, in fact, reasonably suitable for the requirement pleaded by the Petitioners. The finding, therefore, is submitted to be unsustainable.
Per contra, learned counsel appearing on behalf of the Respondents primarily controverts the submissions advanced with regard to the alleged non-availability of alternative suitable accommodation. He submits that the Petitioners had concealed material facts and had not approached the Court with clean hands.
Learned counsel for the Respondents submit that the aforesaid concealment is evident from the fact that, while the existence of Shop No. 8 was disclosed by the Petitioners, the fact that it was lying vacant and available to the Petitioners was not disclosed. He, therefore, submit that such concealment, by itself, is sufficient to sustain the Impugned Judgment.
No other submissions were advanced on behalf of the Respondents.
ANALYSIS:
This Court has heard the learned counsel appearing on behalf of the parties and, with their able assistance, has perused the material available on record and the judicial precedents passed across the Bar.
For the sake of convenience and clarity, the ensuing discussion is arranged under separate headings corresponding to the principal discussion undertaken thereunder.
It is made clear that the said headings are merely intended to facilitate the orderly appreciation of the reasoning and are not to be construed as creating isolated distinction between the issues. The Judgment is to be read as a whole, and the findings recorded under each heading shall be understood in the context of, and in conjunction with, the findings and reasoning contained in the other parts of the Judgment.
Scope of Revisional Jurisdiction
Before proceeding to examine the grounds of challenge urged on behalf of the Petitioners, it would be apposite to advert to the scope and ambit of the revisional jurisdiction vested in this Court under the proviso to Section 25B(8) of the DRC Act.
The Hon‟ble Supreme Court, in Sarla Ahuja v. United India Insurance Co. Ltd.10, Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh11, and, more recently, in Abid-Ul-Islam v. Inder Sain Dua12, has consistently held that the jurisdiction exercised by the High Court under the proviso to Section 25B(8) of the DRC Act is supervisory and revisional in character and cannot be equated with the exercise of appellate jurisdiction.
The aforesaid principles have also been reiterated and relied upon by Coordinate Benches of this Court, inter alia, in Pankaj Pahwa v. Prem Wati & Ors.13, and Sanjeev Hiranandani v. Sunny Grover14.
In Abid-Ul-Islam (supra), the Hon‟ble Supreme Court, while elucidating the legislative intendment underlying Section 25B of the DRC Act, observed that the omission of an appellate remedy against an Order passed by the learned Rent Controller is conscious and deliberate. The jurisdiction conferred upon the High Court is, therefore, one of superintendence over the decision-making process, including the legality and propriety thereof, and does not permit the High Court to substitute its own view for that of the learned Rent Controller merely because another view on the material available on record may be possible. The relevant observations of the Hon‟ble Supreme Court read as under:
“23.The proviso to Section 25-B(8) gives the High Court exclusive power of revision against an order of the learned Rent Controller, being in the nature of superintendence over an inferior court on the decision-making process, inclusive of procedural compliance. Thus, the High Court is not expected to substitute and supplant its views with that of the trial court by exercising the appellate jurisdiction. Its role is to satisfy itself on the process adopted. The scope of interference by the High Court is very restrictive and except in cases where there is an error apparent on the face of the record, which would only mean that in the absence of any adjudication per se, the High Court should not venture to disturb such a decision. There is no need for holding a roving inquiry in such matters which would otherwise amount to converting the power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature.”
In Pankaj Pahwa (supra), a Coordinate Bench of this Court, upon considering the principles enunciated in Abid-Ul-Islam (supra), reiterated that the jurisdiction exercised by this Court under the proviso to Section 25B(8) of the DRC Act is limited in scope and that this Court is not expected to substitute or supplant its view for that of the learned ARC/RC. The revisional scrutiny is confined to examining the decision-making process and determining whether the Impugned Order suffers from an error apparent on the face of the record or an absence of adjudication warranting interference.
In view of the foregoing discussion, the position which emerges is that, while exercising jurisdiction under the proviso to Section 25B(8) of the DRC Act, this Court is neither required nor permitted to undertake a fresh appreciation of the material on record with a view to arrive at an independent conclusion on the merits of the dispute. Interference would be warranted only where the Impugned Orders suffer from a jurisdictional error, manifest illegality, material irregularity or perversity, or where the conclusion arrived at by the learned ARC/RC is wholly unreasonable or founded upon an erroneous premise of law.
The aforesaid limitations, however, do not denude this Court of its jurisdiction to interfere where the findings returned by the learned ARC/RC are founded upon an erroneous legal premise, ignore material evidence or relevant circumstances, or are such that the decision-making process itself stands vitiated. The exercise of revisional jurisdiction does not entail a re-appreciation of the evidence as in an appeal; it nevertheless requires this Court to satisfy itself that the learned ARC/RC has applied the correct legal principles to the material placed before it and has arrived at its conclusions through a legally sustainable decision-making process.
Therefore, the question before this Court is not whether another view on the evidence is merely possible, but whether the findings returned by the learned ARC/RC on the issues of bona fide requirement and availability of alternative suitable accommodation suffer from an erroneous approach in law or disregard of material circumstances so as to warrant interference in exercise of the revisional jurisdiction under Section 25-B(8) of the DRC Act.
Relevant Portion of the Impugned Judgement
Having delineated the scope of the revisional jurisdiction of this Court under the proviso to Section 25-B(8) of the DRC Act, it would be apposite to first advert to the relevant portion of the Impugned Judgment dealing with the issues of bona fide requirement and availability of reasonably suitable alternative accommodation. The relevant portion thereof is reproduced herein below for ready reference:
“15.In this case, the need of the petitioner no.1 to accommodate his daughter-in-law by providing space for her business does not appear to be genuine. First of all, there is no evidence to prove that PW-2 who is daughter-in-law of petitioner no.1 is dependent upon him for her sustenance. Petitioner no.1 has not disclosed either in the pleadings or in the evidence about the current financial or employment status of his younger son sh. Nitish Sharma for whose wife the petitioner no.1 requires the rented premises. PW-2 being wife of Sh. Nitish Sharma must show that the earning of her husband is not sufficient and consequently her dependence crosses over to the petitioner no.1. It is an admitted fact that previously petitioner no.1 had instituted another eviction petition E-268/08 u/s 14 (1)(e) of the DRC Act to provide accommodation to his younger son namely Sh. Nitish Sharma but the said petition came to be dismissed for default of petitioner no.1 when he did not appear for two consecutive dates. No steps were taken by petitioner no.1 to revive the said petition. Resultantly, petitioner no.1 having lost the right to file any other petition for eviction of respondents on the ground of settling his younger son Sh. Nitish Sharma, he devised other way out to circumvent the situation and chose to file the present petition taking the ground of the need of his daughter-in-law while at the same time admitting that need of his younger son to start business has remained unfulfilled.
16.Again, the petitioner is also required to prove that the landlord, or the person for whose benefit premises is required, has no other reasonably suitable accommodation. It is an essential condition for eviction u/s 14 (1) (e) of the Act and is inevitably associated with the condition of bona fide requirement inasmuch as if such suitable alternative space is available, it cannot be said that rented premises is genuinely needed by the landlord. In Ram Narain Arora Vs Asha Rani, AIR 1998 SC 3012, it is observed by the Hon'ble Supreme Court :
“In making a claim that the suit premises is required bona fide for his own occupation as a residence for himself and other members of his family dependent on him and that he has no other reasonably suitable accommodation is a requirement of law before the Court can state whether the landlord requires the premises bona fide for his use and occupation. In doing so, the Court must also find out whether the landlord or such other person for whose benefit premises is required has no other reasonably suitable residential accommodation. It cannot be said that the requirement of the landlord is not intermixed with the question of finding out whether he has any other reasonably suitable accommodation. If he has other reasonably suitable accommodation, then necessarily it would mean that he does not require the suit premises and his requirement may not be bona fide. In such circumstances further inquiry would be whether that premises is more suitable than the suit premises.”
17.In Deena Nath vs Pooran Lal (2001) 5 SCC 705), it is held as under:
“Coming to the case on hand, the judgment of the High Court clearly bears out the position that the lower courts had failed to consider the requirement of the section regarding availability of reasonable accommodation in occupation of the landlord-appellant. As noted earlier, at the time of filing the suit, one vacant shop-room was in occupation of the landlord and in course of the proceedings one more shop room, on being vacated by the tenant, came in his occupation. The High Court has found that the landlord could easily make arrangements for starting the shop which his son Pradeep Kumar Gupta intends to open in the vacant shop rooms.”
18.In the present case, respondents have alleged that shop no.8 in the property in question is lying vacant and is in possession of the petitioners. The petitioners, in this respect, have taken a weird stand that shop no.8 was initially under the tenancy of one Sh. Amit Grover who subsequently sublet the shop to Sh. Vinay Sharma in the year 2009, but the petitioners did not take any action against either of them due to the fear that the litigation will take 15-20 years and they might lose the shop. Respondents have put forth the defense that Sh. Vinay Sharma is relative of petitioner no.1 and he is being projected as a tenant of shop no.8 by the petitioners only to pre-empt the defense that they have no suitable alternative space to set up business for daughter-in-law of petitioner no.1. The defense set out by the respondents does not appear to be implausible in view of the fact that in his cross examination, petitioner no.1/PW-1 has admitted that Sh. Vinay Sharma is his relative and he is the husband of the sister of petitioner no.1's wife. He has also admitted that shop no.8 is lying closed since the year 2010. Petitioner no.1 has also admitted in his cross examination that size of shop no.8 is bigger than that of the tenanted premises. Petitioner no.1 has stated that his relations with Sh. Vinay Sharma have become strained after Sh. Vinay Sharma took over possession of the shop no.8 in the year 2009. However, petitioner no.1/ PW-1 has also admitted in his cross examination that Sh. Vinay sharma had appeared as a witness on his behalf in the eviction petition no. E-264/08 and his affidavit for evidence has been proved as Ex. PW-1/R3. Therefore, the statements made by petitioner no.1 are contradictory. It is pertinent to note that in his cross examination petitioner no.1/PW-1 has stated that he did not take any legal advice from any advocate in respect of the incident relating to the subletting of shop no.8 to Sh. Vinay Sharma, whereas in the petition, it is stated by petitioners that upon the bad legal advice given by the earlier counsel, the petitioners started issuing rent receipt to Sh. Vinay Sharma. Again, PW-2 too in her cross examination has admitted that shop no.8 is lying locked and eversince she got married, she had not seen the shop open. Apparently, shop no.8 which is bigger in size to the rented premises is available to the petitioner no.1 to provide accommodation for the business of his daughter-in-law and the same is suitably located in the same property where the rented premises is situated.
19.The question of alternative accommodation usually arises where the landlord seeks additional accommodation, or he has several tenants and he seeks to evict one or more of them, or some accommodation falls vacant which is not occupied by the landlord etc. In Freddy Fernandes vs P. L. Mehta (1973 RCR 53), the Hon'ble High Court of Delhi has stated various factors which can make the alternative accommodation not „reasonably suitable‟. It may be the nature of accommodation, extend of accommodation, distance from home or place of work, convenience, locality in which it is situate and so on. In the present case, petitioners have not specified any of such reasons to show that premises shop no. 8 which is also described in the site plan Ex PW1/1 and which is lying closed since 2010 her is not suitable to accommodate the requirement of business of daughter-in-law of petitioner no.1. In M.M. Quasim v. Manohar Lal Sharma (1981) 2 SCC 36, the landlord appeared to have several houses which he could occupy, but first appellate court while upholding the decree for eviction held that it was for the landlord to decide which house is suitable for him. The Hon'ble Apex Court held the approach to be completely erroneous and has observed at paragraph 19, thus:
“19.…This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States in the country. The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to pro comparative hardship vide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison d‟etre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of necessities of life shelter and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe.”
20.In this case, petitioners have failed to prove that the rented premises is required bonafidely by them and that they do not have any suitable alternative accommodation. As Such no case for eviction of the respondent from the rented premises is made out.
21.Accordingly, the application/petition for eviction filed by the petitioner is dismissed. Parties to bear their own costs. File be consigned to record room.”
(Emphasis Supplied)
Bona fide Requirement of “Dependent” Family Member
The first limb of the challenge concerns the finding of the learned RC that the bona fide requirement of the Petitioners was not established for want of proof of the financial dependence of the daughter-in-law upon Petitioner No. 1. The question that consequently arises for consideration is whether such financial dependence is, in law, a necessary condition for establishing the bona fide requirement pleaded by the Petitioners.
In order to substantiate the proposition that dependence for the purposes of Section 14(1)(e) of the DRC Act is not confined to financial dependence, reliance has been placed by learned Senior Counsel appearing on behalf of the Petitioners upon the Judgment of a Coordinate Bench of this Court in Charanjeet Singh (supra). The relevant observations thereof read as under:
“11.So far as the petitioner's argument qua dependence of sons of the respondent and his brothers is concerned, it is trite that for the purposes of eviction proceedings under Section 14(1)(e) of the Act, the dependence of a family member of the landlord on him has to be construed liberally so as to include also the family members who need not necessarily be financially dependent upon landlord. The emotional dependence of the landlord on his family members and vice versa cannot be ignored in the proceedings of the present nature. The dependence in such proceedings has to be interpreted judiciously keeping in mind intent behind the enactment. The Delhi Rent Control Act was enacted not to kill rights of an owner of a property who had inducted tenant in the same. The Act was enacted solely to protect the interest of the tenant so as to prevent his exploitation for monetary gains. For bona fide enjoyment of the tenanted premises, the Act does not confer on the tenant a right superior to that of the landlord.
12.There is no explicit statement in the Delhi Rent Control Act to describe as to who is a dependent on the landlord and what constitutes a family. The enactment consciously uses the expression “for any member of his family dependent on him (the landlord)”, deliberately not confining the dependence to financial one. It is necessary to understand that in social milieu, the expression “dependence” is not confined to financial or physical one but means emotional one as well in Municipal Corpn., Nagpur v. Nagpur Handloom Cloth Market Co. Ltd. [Municipal Corpn., Nagpur v. Nagpur Handloom Cloth Market Co. Ltd., AIR 1963 SC 1192] , the Supreme Court held that the expression “family” has according to the context in which it occurs a variable connotation, which does not postulate existence of relationship by blood or marriage only, and rather even a single person or master-servant can also be regarded as a family, depending upon the context. Therefore, the dependence in the present case cannot be narrowly construed to exclude the gainfully employed sons of the respondent and his brothers from the scope of bona fide requirement.
13.More so, because the respondent landlord has set up specific case that he and his brothers desire to expand their business by involving their sons. In the Indian society, a father desiring his children — be it daughters or sons to join his business and grow the same further with their fresh blood is not something outlandish or infelicitous. Such a father cannot be told not to expand his business by involving his sons because for that purpose they would have to put their tenant's business to an inconvenience.
14.I am not convinced with the argument of learned counsel for petitioner tenant that since the respondent landlord did not disclose as to how they would use the subject premises, the requirement pleaded is not bona fide. As mentioned above, the respondent landlord has categorically pleaded that he and his brothers are engaged in business as general merchant, which business they want to expand with the help of their sons and they need the subject premises for the purposes of storage of stock.
(Emphasis supplied)
To buttress the aforesaid proposition, reliance has also been placed upon the decision of a Coordinate Bench of this Court in Hari Shankar Rastogi (supra), wherein the Court, while considering the concept of dependence in proceedings under the Rent Control Laws, observed as follows:
“13.The contention of the counsel for the respondent/tenant of a married female being not dependent upon her grandfather or father but being dependent upon her husband are of no avail. The respondent/tenant forgets that the female in the present case is admittedly a qualified doctor and the question of her dependency even on her husband does not arise. However qua the concept of requirement for self use under the Rent Control Laws, it has been held in C.L. Davar v. Amar Nath Kapur Labhu Lal v. Sandhya Gupta (2010) 119 DRJ 599 and Bhupinder Singh Bawa v. Asha Devi (2016) 10 SCC 209 that the dependency is not financial but for the purposes of accommodation. Thus merely because a family member may be financially independent does not prevent any other family member from seeking eviction of tenant for the requirement of such financially independent member of the family.”
(Emphasis supplied)
A conjoint reading of the aforesaid decisions makes it abundantly clear that the expression “dependent” occurring in the context of Section 14(1)(e) of the DRC Act cannot be construed in a manner so as to confine “dependence” exclusively to mean financial dependence. Therefore, the requirement of dependence cannot solely be tested by applying a rigid financial dependency test, divorced from the familial, emotional and residential dependency circumstances in which such bona fide requirement may be asserted.
The learned RC, however, proceeded on precisely such a premise by holding that the daughter-in-law was required to demonstrate that her husband‟s earnings were insufficient and that, consequently, her dependence extended to Petitioner No. 1, being his daughter-in-law. The learned RC further treated the non-disclosure of the financial or employment status of the husband as a circumstance militating against the bona fide nature of the requirement.
The aforesaid approach, in the considered view of this Court, is not in consonance with the legal principles governing the expression “dependent” in the context of bona fide requirement. Financial dependence may undoubtedly be a relevant circumstance in an appropriate case, however, it cannot be elevated into an inflexible or indispensable requirement for establishing bona fide need. The mere fact that the daughter-in-law has a husband who may be earning cannot, by itself, extinguish or negate the landlord‟s pleaded requirement for providing accommodation to her.
The error committed by the learned RC is, therefore, not merely one of appreciation of evidence, but that of application of a legal test which is neither contemplated by the statutory provision nor consistent with the judicial principles noticed hereinabove. The enquiry was consequently directed towards establishing financial dependence, rather than examining whether the requirement pleaded by the Petitioners was genuine and bona fide.
This distinction assumes greater significance in the facts of the present case. The Petitioners herein had specifically pleaded that the subject premises were required for enabling the daughter-in-law to carry on her business. The requirement was thus pleaded as a present and specific requirement for accommodation for the proposed business, and not as a claim founded merely upon her financial dependence upon Petitioner No. 1. The fact that she is married or that her husband may have an independent source of income cannot, by itself, render such requirement artificial, fanciful or mala fide.
It is also material that the learned RC has not returned any independent finding that the proposed business of the daughter-in-law was fictitious, impossible or merely a pretext for securing eviction of the Respondents. The finding against the Petitioners rests substantially upon the absence of proof of financial dependence and the non-disclosure of the financial or employment status of the husband. Once that premise is found to be legally unsustainable, the same cannot, by itself, furnish a basis for negating the bona fide nature of the requirement.
The learned RC has also drawn an adverse inference from the earlier Eviction Petition, being E-268/08, which had been filed for providing accommodation to the younger son of Petitioner No. 1 and was dismissed for default. According to the learned RC, the present Eviction Petition represented an attempt to circumvent the consequence of the dismissal of the earlier proceedings by projecting the requirement of the daughter-in-law instead of the son of the Petitioner No. 1, as claimed in the aforesaid previous Eviction Petition.
The aforesaid reasoning, however, does not, by itself, establish that the requirement pleaded in the present proceedings is not bona fide. The dismissal of the earlier Eviction Petition for default does not render a subsequent requirement pleaded for another member of the family fictitious or legally impermissible. The two requirements cannot be treated as identical merely because both relate to the proposed use of the premises for carrying on business by members of the same family.
More importantly, the learned RC‟s conclusion that the present Petition was devised to circumvent the earlier proceedings is not supported by any independent finding that the daughter-in-law did not genuinely require accommodation for her business.
The inference drawn by the learned RC substantially proceeds from the erroneous premise that her requirement could be accepted only upon establishing her financial dependence upon Petitioner No.
Once that premise is rejected, the mere existence and dismissal for default of the earlier Eviction Petition cannot, without more, establish that the present requirement is mala fide.
In the considered view of this Court, therefore, the material on record, when examined in accordance with the correct legal test, establishes the bona fide requirement pleaded by the Petitioners for the business of their daughter-in-law. This conclusion is, however, subject to the further statutory requirement that the Petitioners must establish that they have no other reasonably suitable accommodation for the purpose for which the premises are required.
Availability of Alternative Suitable Accommodation
The second issue that arises for consideration is whether the learned RC was justified in holding that Shop No. 8 constituted reasonably suitable alternative accommodation available to the Petitioners for the purpose for which eviction of the Respondents from the subject premises was sought.
The finding of the learned RC rests principally upon the fact that Shop No. 8 was larger than the subject premises, was situated in the same property and had remained closed since 2010. The learned RC also considered the Petitioners‟ case regarding the alleged tenancy of Sh. Vinay Sharma and, upon consideration thereof, concluded that Shop No. 8 was available to Petitioner No. 1 for accommodating the business of his daughter-in-law.
In the considered opinion of this Court, the aforesaid reasoning does not sufficiently address the statutory enquiry under Section 14(1)(e) of the DRC Act. The mere existence of another premises does not, by itself, constitute “reasonably suitable” alternative accommodation. The enquiry must necessarily extend to whether such premises is both available and reasonably suitable for the particular requirement for which eviction is sought.
In this regard, it is trite that the landlord is the best judge of his or her requirement and that the tenant cannot dictate the manner in which such requirement ought to be accommodated. This principle, however, does not dispense with the statutory requirement of absence of reasonably suitable alternative accommodation. Where an alternative premises is relied upon to defeat the landlord‟s claim, its availability and suitability must necessarily be examined in the context of the particular requirement pleaded.
The question of availability assumes significance in the present case. While the Petitioners maintained that Shop No. 8 was under the occupation of one Mr. Vinay Sharma, the Respondents admittedly, in their Leave to Defend application, Written Statement and during cross-examination, referred to the said premises as being used as a godown/ for storage of goods by the Petitioners. The learned RC, while proceeding on the basis that Shop No. 8 had remained closed and was consequently available to the Petitioners, does not appear to have reconciled this aspect of the record with its finding regarding the actual availability of the said premises.
Even assuming that Shop No. 8 was available, the question of its reasonable suitability remained to be examined. The Petitioners had specifically pleaded, and as demonstrated by the site plan as well, that the subject premises comprise a two-sided open-front shop, whereas Shop No. 8 is situated towards the rear portion of the property. In the context of a retail commercial establishment, frontage, visibility, accessibility and location are material attributes which directly bear upon its commercial utility. The mere fact that Shop No. 8 is larger or situated in the same property cannot, therefore, be determinative of its suitability.
The learned RC does not appear to have undertaken this enquiry in its proper perspective. The conclusion regarding suitability proceeds substantially from the fact that Shop No. 8 was larger than the subject premises, situated in the same property, allegedly available and had remained closed for a considerable period. The material consideration as to whether its rear-ward location and absence of the two-sided open frontage materially affected its suitability for the proposed business of the daughter-in-law has not been meaningfully examined.
The omission is material. The statutory enquiry was not whether the Petitioners had another shop in the abstract, but whether they had another “reasonably suitable accommodation” for the particular requirement pleaded by them. The explanation furnished by the Petitioners regarding the commercial advantages of the subject premises was, therefore, a circumstance directly bearing upon the suitability of Shop No. 8 and could not have been disregarded.
It is also material that the existence of Shop No. 8 was not suppressed by the Petitioners. The said premises were disclosed in the Eviction Petition and formed part of the material before the learned RC. The controversy, therefore, was not with respect to the disclosure of another premises, but whether the said premises were actually available to the Petitioners and, even if available, whether they could reasonably serve the particular commercial requirement for which the subject premises were sought.
This Court is conscious that the aforesaid conclusion does not amount to a substitution of its own preference for that of the Petitioners or to an appellate re-appreciation of the evidence. Interference is warranted because the learned RC proceeded from the existence and physical attributes of Shop No. 8 to its suitability without adequately examining material circumstances bearing upon its actual availability and its suitability for the particular commercial requirement pleaded by the Petitioners.
In the facts of the present case, Shop No. 8 was the only alternative premises relied upon and pressed into service by the Respondents to contend that the Petitioners had reasonably suitable accommodation available to them. No other premises has been identified in the Impugned Judgment as constituting an alternative accommodation capable of meeting the requirement pleaded by the Petitioners. Having regard to the aforesaid discussion, including the material concerning the use of Shop No. 8 as a godown, its rearward location and the absence of the two-sided open frontage possessed by the subject premises, this Court is of the view that Shop No. 8 cannot be regarded as a reasonably suitable alternative accommodation for the particular commercial requirement pleaded by the Petitioners.
Consequently, the only alternative premises relied upon to defeat the Petitioners‟ claim fails to satisfy the test of “reasonably suitable” accommodation. In the considered opinion of this Court, no other reasonably suitable alternative accommodation has been shown to be available to the Petitioners and therefore, the subject premises, remain the only reasonably suitable accommodation shown on the record for the commercial requirement pleaded by the Petitioners.
Sustainability of the Impugned Judgement
In view of the foregoing discussion, the findings returned by the learned RC cannot be sustained. On the first aspect, the learned RC proceeded on the erroneous premise that financial dependence of the daughter-in-law upon Petitioner No. 1 was necessary to establish bona fide requirement. On the second, the learned RC proceeded from the existence and alleged availability of Shop No. 8, as also its comparative size, to conclude that reasonably suitable alternative accommodation was available, without adequately examining its actual availability and suitability for the particular commercial requirement pleaded.
These manifest errors are not matters of mere appreciation of evidence or of the possibility of another view on the material available. They go to the very legal parameters governing the adjudication of a claim under Section 14(1)(e) of the DRC Act. The Impugned Judgment, therefore, suffers from an erroneous approach in law and a failure to consider material circumstances having a direct bearing upon the statutory requirements of bona fide requirement and absence of reasonably suitable alternative accommodation.
In these circumstances, this Court is satisfied that the present case falls within the limited but well-recognised parameters of interference under the proviso to Section 25-B(8) of the DRC Act. The interference is not founded upon a mere substitution of this Court‟s appreciation of the evidence for that of the learned RC, but upon the application of an erroneous legal test and the failure to consider material circumstances relevant to the statutory enquiry under Section 14(1)(e) of the DRC Act.
Accordingly, the Impugned Judgment is, therefore, liable to be set aside.
Consequential Relief vis-à-vis Revisional Jurisdiction
The question that now arises is as to the consequential relief to which the Petitioners are entitled. This Court is conscious that the jurisdiction exercised under the proviso to Section 25-B(8) of the DRC Act is supervisory and revisional in character and is not appellate. Ordinarily, where interference is warranted on account of an infirmity in the decision-making process, the matter may be remitted to the learned RC for consideration afresh. However, remand is not an inevitable consequence of every interference in revisional jurisdiction. The determinative consideration is whether any further adjudicatory exercise is, in fact, required before the statutory consequence can follow.
In the present case, the Eviction Petition has already undergone a full-fledged trial. The parties have had complete opportunity to plead their respective cases, lead evidence and contest the material relied upon by the opposite side. The Impugned Judgment has been rendered upon consideration of the pleadings, evidence and documents brought on record. The errors identified by this Court do not arise from any absence of evidence or from any factual issue which remains to be investigated. They arise from the application of an erroneous legal test and from the failure to consider material circumstances bearing directly upon the statutory requirements under Section 14(1)(e) of the DRC Act.
Insofar as the bona fide requirement is concerned, the learned RC proceeded on the premise that the daughter-in-law, for whose benefit the premises were sought, was required to establish financial dependence upon Petitioner No. 1. As held hereinabove, such financial dependence is not a condition precedent to the establishment of bona fide requirement. Once the aforesaid erroneous premise is excluded, the principal basis on which the bona fide requirement was rejected cannot survive.
Likewise, on the issue of alternative accommodation, Shop No. 8 was the only premises relied upon to contend that the Petitioners possessed reasonably suitable alternative accommodation. For the reasons already set out hereinabove, the learned RC failed to adequately examine both the question of its actual availability and, in any event, its reasonable suitability for the particular commercial requirement pleaded by the Petitioners. Having regard to the material on record, Shop No. 8 cannot be regarded as a reasonably suitable alternative accommodation for such requirement.
The aforesaid conclusions do not involve a re-trial of the matter or a substitution of this Court‟s view merely because another view on the evidence may be possible. The interference is founded upon the identification of errors in the legal approach adopted by the learned RC and the failure to consider material circumstances bearing directly upon the statutory enquiry. Once the correct legal parameters are applied to the material already available on record, no further factual adjudication remains necessary.
The aforesaid approach finds support in Y.M. Sehgal v. K.V. Sachdeva15, wherein this Court, while dealing with a revision arising from an Eviction Petition, rejected the contention that, even after finding the conclusion of the Rent Controller to be erroneous, the Revisional Court ought necessarily to remand the matter. The Court observed that such a course would “thwart the course of justice”, and, upon finding the requirement of the landlord to be bona fide, proceeded to set aside the Impugned Order and grant the Order of eviction itself. The relevant portion of the Judgment reads as under:
“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”.
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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 favour 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.”
(Emphasis supplied)
The same principle is borne out by the decision of this Court in Sudesh Kumari Soni v. Prabha Khanna16, wherein the Eviction Petition had been dismissed, inter alia, on the ground that alternative accommodation was available. Upon finding that the learned ARC had adopted an incorrect approach in examining the suitability of the alternative accommodation, this Court set aside the Impugned Order and proceeded to pass the Order of eviction itself. The relevant observations read as under:
“26.Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement. In view of well settled law, I hold that accommodation available with the petitioner is insufficient as against total family members. Hence the petitioner has made out a case under Section 14(1)(e) of Delhi Rent Control Act and is entitled for relief claimed.
27.It appears clearly that learned trial Court has not adopted the correct approach in dealing with the issue in hand and I am of the considered view that the trial Court has incorrectly rejected the eviction petition of the petitioners on the ground that there is alternative vacant accommodation available to him. In these circumstances the impugned order is set aside on the reasons explained above. The present petition is allowed, order of eviction is passed accordingly. However, this order shall not be executed and the respondents shall not be evicted before expiry of period of six months from today. The respondents are directed not to part with possession of the suit property in favour of any third party or cause any damage to the same and continue to make regular payment of rent etc. to the petitioner.”
(Emphasis supplied)
The aforesaid decisions do not dilute the restrictive nature of the jurisdiction under the proviso to Section 25-B(8) of the DRC Act. They recognise, however, that where the evidentiary record is complete, the parties have had full opportunity of contest, and the error committed by the learned RC can be corrected on the existing record by applying the correct legal principles, remand is not necessarily required. The question is not whether this Court is exercising appellate jurisdiction, but whether, having exercised its revisional jurisdiction within the permissible parameters, any further adjudicatory exercise remains necessary before consequential relief can be granted.
In the present case, no such further adjudication is warranted. The relationship of landlord and tenant is admitted. The bona fide requirement has been established upon application of the correct legal test. The only alternative premises relied upon by the Respondents, namely Shop No. 8, has been found not to constitute reasonably suitable alternative accommodation for the particular commercial requirement pleaded by the Petitioners. The two grounds which constituted the foundation of the dismissal of the Eviction Petition have, therefore, ceased to survive.
A remand, in these circumstances, would serve no meaningful adjudicatory purpose. It would neither enable the parties to place any material which is presently unavailable nor require the learned RC to undertake any factual enquiry which remains incomplete. The parties have already traversed the entire course of a full-fledged trial. To remit the matter merely to enable the learned RC to reconsider the same material in the light of the legal principles found applicable by this Court would result in another round of proceedings without any corresponding adjudicatory necessity.
In view of the aforesaid discussion, this Court is satisfied that the Petitioners have established the bona fide requirement pleaded by them and that no other reasonably suitable accommodation has been shown to be available for the purpose for which the subject premises are required. The requirements contemplated under Section 14(1)(e) of the DRC Act consequently stand satisfied. The Petitioners are, therefore, entitled to the consequential relief of eviction without remand of the matter to the learned RC.
DECISION:
Accordingly, the present Revision Petition is allowed. The Impugned Judgement passed by the learned RC, in Eviction Petition, is set aside.
Consequently, the Eviction Petition filed by the Petitioners under Section 14(1)(e) of the DRC Act is allowed and an Order of Eviction is passed against the Respondents in respect of the subject premises, i.e., Shop No.1, Ground Floor, Property bearing No. 493, Laxmi Market, Teliwara, Shahadra, Delhi-110032.
The Petitioners shall, however, not be entitled to initiate execution proceedings for recovery of the possession of the subject premises before expiration of six months from today in view of statutory protection under Section 14(7) of the DRC Act.
The present Revision Petition, along with the pending Application(s), if any, stands disposed of in the aforesaid terms.