DIRECTOR OFINCOME TAX-II vs. BRITISH AIRWAYS PLC,

RC.REV.338/2014 Page 1

$~J * IN THE HIGH COURT OF DELHI AT NEW DELHI %

Pronounced on: 06.04.2018 + RC.REV. 338/2014

SANJEEV CHUGH ( DECEASED)THROUGH HIS LRS.. Petitioner

Through Mr.Subhiksh Vasudev, Advocate

Versus

OM PRAKASH BATRA & ANR

..... Respondent Through Mr.K.R.Gupta and Mr.Nitin Gupta, Advs.

CORAM: HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. 1. The present Revision Petition is filed under section 25-B(8) of the Delhi Rent Control Act, 1958 ( hereinafter referred to as the DRC Act) seeking to impugn the order dated 15.7.2014 by which an order of eviction was passed on a petition filed by the respondents/landlord under section 14(1)(e) of the DRC Act. 2. The respondents/landlords filed the Eviction Petition under section 14(1)(e) of the DRC Act for property being Mezzanine Floor measuring 700 sq.ft. H-4/4, Model Town-II, Delhi which was let out to the petitioner @ Rs.300/- per month. The property originally belonged to Shri Rajender Singh. He sold the aforesaid property to the respondents on 22.5.2002 and handed over vacant possession of the portions in his possession, namely, first and second floors to the respondents which area they are using for storage of their goods/business of Naveen Electronics. The respondents are

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also using premises B-2/2, UG-5, Sasco Bhawan, Naniwala Bagh, Azadpur, Delhi for the said storage purposes. The respondent No.1. Shri Om Prakash Batra has one son Arun Batra who has completed his B.Com in the year 2000. The other respondent, i.e. respondent No.2, Sh.Rajinder Batra has a son Aditya Batra who completed his B.Com in the year 2003. Both the sons were said to be dependent on the respective respondents for their residence as well as their livelihood. The respondents alongwith their family are staying at House No.40, Kohat Enclave, Pitam Pura, Delhi which belongs to Smt.Ramesh Batra wife of Shri Om Prakash Batra. The two sons have been accommodated in the family business of Naveen Electronics where they are said to be getting a monthly salary. On account of expanding business of Naveen Electronics Pvt. Limited the respondents also arranged additional space at A-2 G.T.Karnal Road Industrial Area, on a rent of Rs.34,000/-. Hence, the respondents are using the premises at first and second floor at H-4/4, Model Town -II, Delhi; B-2/2, UG-5, Sasco Bhawan, Naniwala Bagh, Azadpur, Delhi; and at AT-2,G.T.Karnal Road Industrial Area, Delhi for the business of the company. It is further urged that the two sons have done courses in computers. In the market which surrounds the tenanted property there is no computer shop and both the sons are interested in doing business in the computer line. The tenanted portion being the front portion of Mezzanine floor is approachable from the main bazaar and is ideally suitable for doing business of computers. 3. The parties have led their evidence. The respondent led the evidence of PW-1 Shri Om Prakash Batra and PW 2 Shri Arun Batra. The petitioners led the evidence of DW-1 Shri Piyush Chugh and DW-2 Shri Ram Babu, LDC, Billing Headquarter, North Delhi Municipal Corporation, Delhi.

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pleas of the petitioner/tenant were rejected and an eviction order was passed against the petitioner/tenant. 7. I have heard learned counsel for the parties. Learned counsel appearing for the petitioner has vehemently argued as follows to contend that the impugned order is liable to be set aside. (i) The respondents have alternative accommodation from where the two sons can carry on their business. The properties said to be available to the respondents are property at T-27, Moti Nagar, Gali No.1, Gaushala Marg, New Rohtak Road, New Delhi; Quarter No.15, Ratan Nagar, Gaushala Marg, New Delhi; and B-375 Meera Bagh Colony, New Delhi. Hence, the respondents have alternative accommodation available. (ii) The height of the mezzanine floor i.e. the suit property is only seven feet. As per sanctioned plan Ex.DW2/A, this can be used only for storage purposes. It has no windows. Hence, the said mezzanine floor i.e. the suit property cannot be used by the sons of the respondents for carrying on a computer shop. The plea of the respondents lacks bonafide. (iii) The respondents never filed Income Tax Returns of the sons. It was only on a direction passed by the ARC on 8.2.2012 that they filed their IT Returns for the last three years which show that the said sons have income at par with that of the HUF and hence cannot said to be dependent upon the respondents for their bona fide requirements. 8. Learned counsel appearing for the respondents has denied the contentions of the petitioners. He has pointed out as follows:-

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(i) The so called alternative accommodation said to be available to the respondents and relied upon by the petitioners are all residential accommodation. No doubt one of the properties is in the area of mixed land use and on approaching the municipal corporation and paying necessary charges, the same can be converted for commercial purposes. However, merely for the benefit of the tenant/petitioner the respondents are not obliged to pay large sums to convert it to commercial user. (ii) Further, it was pleaded that the suit property is facing the main road and is more appropriate and suitable to the respondents. (iii) It is further contended that the petitioners are also using the mezzanine floor for office purposes and that the entire lane is also doing the same. Hence, the contention of the petitioner to the effect that the suit properties can be used for storage is misplaced. 9. I may first see the scope of the present petition. 10. The Supreme Court in Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, (1999) 6 SCC 222/(MANU/SC/0132/1999) described the revisional powers of this court as follows:- “11……. The phraseology of the provision as reproduced hereinbefore provides an interesting reading placed in juxtaposition with the phraseology employed by the Legislature in drafting Section 115 of the CPC. Under the latter provision the exercise of revisional jurisdiction of the High Court is circumscribed by the subordinate court having committed one of the three errors, namely (i) having exercised jurisdiction not vested in it by law, or (ii) having failed to exercise a jurisdiction so vested, or (iii) having exercised its jurisdiction with illegality or material irregularity. Under the proviso to Sub-section (8) of Section 25B, the expression governing the exercise of revisional jurisdiction by the High Court is 'for the purpose of satisfying if an order made by the Controller is

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according to law'. The revisional jurisdiction exercisable by the High Court under Section 25B(8) is not so limited as is under Section 115 C.P.C. nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re- appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law'. For that limited purpose it may enter into re-appraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available…”

(e) that the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation.”

The above provisions would in view of the judgment of the Supreme

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Court in Satyawati Sharma(dead) by LRs vs. Union of India & Anr., AIR 2008 SC 3148 apply to commercial premises also.

As far as the contention that one of the properties can be converted to commercial user is concerned this fact came out in the course of cross- examination of Shri Om Prakash Batra/PW-1 on 1.11.2011. PW-1 confirms that the property B-375, Mira Bagh, New Delhi, is a residential property situated at a notified road where the property can be got converted for

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commercial use. However, it has not been denied that large sums have to be paid by the respondent/landlord for the purpose of conversion of the said residential property for commercial use. As rightly pointed out by the learned counsel for the respondent the respondent is not obliged to spend large sums for the convenience of the petitioner to get residential property converted to commercial. There is hence no merit in the said plea raised by the petitioner.

The second plea is, namely, that there was suppression by the respondent in the Eviction Petition and the aforenoted residential properties were not disclosed in the petition as alternative suitable accommodation available to the petitioner. The respondents have pointed out that all three properties are residential properties and cannot be used for starting of any business. The copies of the title deeds of the said three properties at Moti Nagar, Gaushala Marg and Mira Bagh Colony have been placed on record which confirm that these properties are residential properties. As the requirement of the respondents is for running a computer shop for the sons, these properties cannot said to be alternative suitable accommodation available to the respondent. It cannot be said that there was a suppression of material facts by the respondent which would disentitle the respondent for any relief of eviction.

The ARC in the impugned order has rightly noted that there was no legal requirement on the part of the respondents to disclose availability of residential properties in the petition as the said properties cannot be termed to be alternative accommodation. 15. In view of the above, the said contention of the petitioner is entirely without merits and has been rightly rejected by the ARC.

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Start new business/no experience required (i) In Ram Babu Agarwal vs. Jay Kishan Das, MANU/SC/1719/2009MANU/SC/1719/2009: (2010) 1 SCC 164, it was observed that "A person can start a new business even if he has no experience in the new business that does not mean that his claim for starting new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business and sometimes they are successful in the new business also."

(ii) In Tarsem Singh vs. Gurvinder Singh, MANU/DE/2640/2010: 173 (2010) DLT 379, it was observed that "If the landlord wants to start his own business in the premises owned by him then by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither bonafide nor genuine."

(iii) In Balwant Singh Chowdhary & Anr. vs. Hindustan Petroleum Corporation Ltd., 2004 (1) RCR 487, it was held that "It is not necessary for the landlord to plead and prove the specific business he wants to set up, if the landlord wanted the premises for business purposes."

(iv) In Gurcharan Lal Kumar vs. Srimati Satyawati & Ors., MANU/DE/1078/2013: 2013 (2) RCR (Rent) 120 it was observed that "Merely because the exact nature of business has not been described would not take away their bonafide need to carry out a business (when admittedly both the sons are dependent upon petitioner for this need). It was observed that if the business need is not disclosed this would not wipe away the bonafide need of the landlord as has been pressed under Section 14(1)(e) of the DRCA, 1958."

(v) In Raj Kumar Khaitan & Ors. vs. Bibi Zubaida Khatun & Anr., MANU/SC/0411/1995: AIR 1995 SC 576, it was observed that "It was not necessary for the appellants-landlords

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to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody would bind the landlords to start the same business in the premises after it was vacated.”

Hence, the legal position is quite clear. The landlord need not to show evidence that he has experience of said business that he proposes to start. In fact, it is not necessary for landlord to indicate the precise nature of business which he intends to start in the premises. Hence if for some reason there is an impediment in the way of the petitioner/petitioner’s son from starting a computer shop from the tenanted premises, the said petitioners would be free to change the nature of business and use the suit property for carrying on business which confirms to the legal requirements. There is no merit in the contention of the petitioner that the need for starting a computer shop is not bonafide requirement. 21. The last contention raised by the petitioner is regarding Income Tax Returns of the sons of the respondents. A perusal of the IT Returns of Shri Aditya Batra for Assessment Year 2009-10 shows a gross total income of Rs.2,95,914/-. The computation of income shows that salary received from M/s Naveen Electronics Private Limited is Rs.1,80,000/-. Income from other sources are shown as Rs.60,000/-. Similarly, Form 16A of Shri Aditya Batra shows his salary for Assessment Year 2009-10 from M/s Naveen Electronics Private Limited as Rs.1,80,000/- . As to how these returns in any manner help the case of the petitioner is not clear. The two boys are essentially only working as employees of the company. Their desire is to set up an independent business and independent career. This appears to be a reasonable and bona fide desire. It cannot be said that they are earning

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handsomely from the company where they are presently working. 22. I may also note the finding of fact recorded by the ARC in the impugned order that the tenanted premises has an approach from the main model town road which is a notified commercial road. While dealing with somewhat similar facts the Supreme Court in the case of Anil Bajaj vs. Vinod Ahuja, AIR 2014 SC 2294 held as follows:- “6. In the present case it is clear that while the landlord (Appellant No. 1) is carrying on his business from a shop premise located in a narrow lane, the tenant is in occupation of the premises located on the main road which the landlord considers to be more suitable for his own business. The materials on record, in fact, disclose that the landlord had offered to the tenant the premises located in the narrow lane in exchange for the tenanted premises which offer was declined by the tenant. It is not the tenant's case that the landlord-Appellant No. 1 does not propose to utilize the tenanted premises from which eviction is sought for the purposes of his business. It is also not the tenant's case that the landlord proposes to rent out/keep vacant the tenanted premises after obtaining possession thereof or to use the same is any way inconsistent with the need of the landlord. 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. The grounds on which leave to defend was sought by the tenant and has been granted by

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the High Court runs counter to the fundamental principles governing the right of a tenant to contest the claim of bonafide requirement of the suit premises by the landlord under the Delhi Rent Control Act, 1958. Even assuming the assertions made by the tenant to be correct, the same do not disclose any triable issue so as to entitle the tenant to grant of leave to defend.”

JAYANT NATH, J. APRIL 06, 2018/n