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IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
RCT Appeal No. 100/2011
Unique ID No. 0240IC0593712011
Shri R.N. Gupta
S/o Late Laxmi Narain Gupta,
R/0 7/6, Ansari Road,
Darya Ganj, New Delhi-2.
. . . Appellant
Versus
1- Shri K.L. Sharma
s/o. Late Dhunda Mal Sharma,
H-19, Arya Samaj Road, Uttam Nagar,
New Delhi 110059.
2- M/s. Tara Enterprises
Through its Properitor
Mr. K.L. Sharma,
7/6 Ansari Road, Darya Ganj,
New Delhi 110002.
. . . Respondent
Date of institution of appeal : 20.12.2011. Date when final arguments were heard: 15.05.2012 Date of pronouncement of judgment :18.05.2012.
JUDGMENT :-
Appellate Jurisdiction of this Tribunal under Section 38 of the Delhi Rent Control Act (hereinafter to be referred as "DRC Act") has been invoked by the appellant/petitioner, feeling aggrieved by the order dated 15.11.2011 passed by learned Addl. Rent Controller (Central), Delhi whereby his petition under Section 14(1)
(b) & ( c) of DRC Act was dismissed.
(RCT Appeal No.100/2011) (Page 1 of 10) 2- It will be in the fitness of things to narrate the
circumstances leading to the filing of the present appeal. The petitioner (appellant herein) filed a petition u/section 14(1)(b) and 14(1)(c) of DRC Act, seeking eviction of the respondent from the premises being a Garage measuring 14'x11' situated on the ground floor of property bearing No.7/6 Ansari Road, Darya Ganj, New Delhi, inter alia on the allegations that respondent was inducted as tenant in respect of suit premises vide agreement dated 9-2-1988 by the predecessor in interest of the petitioner. Respondent has sublet, assigned or parted with possession of the tenanted premises to Shri Anil Kumar, without the written consent of the petitioner or his predecessor in interest illegally and unauthorisedly. The premises has been and is being used for a purpose other than the purpose for which it was let, inasmuch as that the premises was let out for commercial purposes but the same is being illegally and unauthorisedly used for screen printing which is causing nuisance and health hazard not only to the petitioner and his family but also to his neighbours, since running of screen printing job from the suit premises is causing lot of pollution and is in violation of the provisions of relevant Pollution Act. It was alleged that the material which is stored in the tenanted premises is highly inflammable and same can be the cause of any untoward incident. The misuse of the premises has not been stopped despite service of notice.
3- Respondent resisted the eviction petition by filing (RCT Appeal No.100/2011) (Page 2 of 10)
written statement. While denying the allegations of the petitioner, it was stated that the alleged sublettee Anil Kumar is his son who is helping him in his business and that respondent is using the premises only for commercial purpose.
4- Petitioner filed replication, wherein he denied the allegations made in the written statement and reiterated the stand taken in the main petition.
5- Petitioner examined himself as PW 1 in support of his case, whereas respondent examined himself as RW1. Besides that, Anil Sharma has appeared as RW2. 6- After hearing learned Counsel for the parties, learned Trial Court dismissed the eviction petition on both counts by observing that petitioner has failed to prove all the essential ingredients of Section 14(1)(b) and 14(1)(c) of the DRC Act.
7- The petitioner/appellant has assailed the findings of the learned Additional Rent Controller by way of present appeal.
8- Notice of the appeal was issued to the respondents and trial court record was summoned.
9- I have heard Shri Abhishek Gupta, Counsel for the Appellant, Shri R.D. Mahant, Counsel for respondents and have perused the record.
10- At the outset, learned Counsel for the Appellant conceded that although the eviction petition was filed on two grounds i.e. under Section 14(1)(b) and 14(1)(c) of the DRC Act, however, as regards the ground under Section (RCT Appeal No.100/2011) (Page 3 of 10) 14(1)(c), no cogent evidence was led and therefore, petition was dismissed on this score. He is not pressing this appeal on this ground of eviction. However, it was submitted by the learned Counsel for the Appellant that the impugned order qua ground under Section 14(1)(b) of the DRC Act is contrary to law inasmuch as important aspects of evidence have not been considered and reliance was placed on 1976 RLR (SC) 634, Damadi Lal etc. v. Paras Ram etc.. It was further submitted that since the tenant admitted the presence of stranger in the suit premises, the onus shifted upon him to prove that in what capacity he is occupying the premises and that he has not sublet, assigned or parted with possession of the suit premises. The learned trial court proceeded on an absolutely incorrect presumption that respondent was merely to prove that sub-tenant Anil Sharma is his son and nothing more. The learned Trial Court did not consider the vital aspects of cross-examination of witnesses of the respondent inasmuch as RW1 stated that he does not file income tax return and that he does not visit the suit premises and his son is an income tax assessee and he files income tax return. His son RW2 admitted that he files income tax return and this was the only source of his income from the business which he carries out with his father. This admission leads to the conclusion that original tenant has no concern with the suit premises and it is the sub-lettee who is in the full control of the business being carried out from there. As such, it was submitted that impugned order (RCT Appeal No.100/2011) (Page 4 of 10) be set-aside and eviction order be passed against the respondents.
11- Rebutting the contention of learned counsel for the appellant, it was submitted by learned Counsel for the respondent that the impugned order is reasoned one and there is no infirmity in the impugned order. The entire case is covered by 1988(2) All India Rent Control Journal, 123, Jagan Nath (deceased) through L.Rs v. Chander Bhan & Others; and AIR 1995 SC 380 United Bank of India v. Coocks and Kalvey Properties (P) Ltd. As such, it was submitted that appeal is liable to be dismissed.
12- I have given my thoughtful consideration to the respective contentions of the learned Counsel for the parties and have carefully perused the record. 13- A perusal of the record goes to show that the petitioner/ appellant sought eviction of the respondent on the grounds that respondent who vide agreement dated 09.02.1988 was inducted as a tenant in the suit premises @ Rs.200/- per month excluding electricity charges, has sublet, assigned or otherwise parted with the possession of the tenanted premises to Anil Kumar without the written consent of the petitioner, illegally and unauthorisedly. The premises has been and is being used for a purpose other than the purpose for which it was let out.
14- The respondent has taken a specific stand that the alleged sublettee Anil Kumar is his son who is helping him in his business. It was also denied that the premises are (RCT Appeal No.100/2011) (Page 5 of 10) being used for the purpose other than the purpose for which it was let out.
15- It goes without saying that when an eviction petition is filed on the ground under Section 14(1)(b) of the DRC Act, it is incumbent upon the petitioner to prove:
i) there exists relationship of landlord and tenant between the parties;
ii) the tenant has on or after 9th day of June, 1952, sublet, assigned or otherwise parted with possession of whole or any part of the tenanted premises; and
iii) that he did so without obtaining the consent of landlord in writing.
16- As regards the first ingredient, regarding relationship of landlord and tenant between the parties, there is no dispute.
17- It is the case of the appellant/petitioner that premises has been sublet by respondent to Anil Kumar. In the written statement, presence of Anil Kumar in the suit premises is not disputed by the respondent. However, it is the case of the respondent that Anil Kumar is his son and in that capacity, he is helping him in his business. That being so, the question for consideration is whether the mischief contemplated under Section 14(1)(b) of DRC Act has been committed by the tenant by subletting, assigning or parting with possession of the whole or part of the suit premises without obtaining consent in writing of the landlord. There is no dispute that there was no consent in (RCT Appeal No.100/2011) (Page 6 of 10) writing of the landlord in this case. In order to prove the subletting, there should exist relationship of landlord and tenant between the tenant and the sub-tenant. In order to prove parting with possession, it has to be proved that the possession has been given to a person other than those to whom the possession has been given by the lessor and parting with the possession must have been by the tenant. Mere user by other person is not parting with possession, so long as the tenant retains the legal possession with himself. In fact, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession, there is no parting with possession in terms of clause (b) of Section 14(1) of the DRC Act. Much emphasis has been laid by the learned Counsel for Appellant for submitting that it was admitted by respondent that he is not an income tax assessee. At one stage he admitted that he does not visit the suit premises but at second stage, admitted that he visits the suit premises occasionally. He admitted that his son is an income tax assessee and files income tax return. The son of tenant i.e. RW2 (Anil Kumar) admitted in cross- examination that he files income tax return. The only source of his income is the business which he carries out from the suit premises. He has also employed the person for bringing and delivering the goods. He is depositing electricity bills. From this cross-examination, learned Counsel for the appellant wants the court to draw (RCT Appeal No.100/2011) (Page 7 of 10) an inference that the tenant has parted with possession of the suit premises in favour of his son. As stated above, it is not only the physical possession, but also right to possession which has to be divested by the tenant in favour of stranger before the court could come to the conclusion that the tenant had parted with the possession of the suit premises. In the instant case, no evidence has come on record to prove that the tenant has lost his physical as well as legal possession over the suit premises. In fact, even no suggestion was given to the respondent that he ceased to have any legal possession over the suit premises and now the premises are in exclusive possession of Shri Anil Kumar.
18- Jagan Nath (deceased) through L.Rs (supra) relied upon by the learned Counsel for respondents was also a case where the eviction petition was filed under Section 14(1)(a) and 14(1)(b) of the DRC Act and it was claimed by the landlord that the tenant had parted with possession of the premises in question in favour of his sons Baldev Raj Bindra and Sat Pal Bindra. Besides, his oral evidence, the landlord also produced on record one statement made before the Income Tax Officer which indicated that the tenant who was the proprietor of the Tent House sold the same to his sons for a sum of Rs.18,000/- and got cash of Rs.8,000/- and thereafter he gifted the to his sons. It had also come in the statement that his sons Sat Pal Bindra and Baldev Raj Bindra have entered into partnership in the same name of M/s Bindra Tent House in the same (RCT Appeal No.100/2011) (Page 8 of 10) premises. Photocopy of stamp vendor register was also produced to prove that non judicial paper was purchased by Baldev Raj for partnership purposes in the name of M/s Bindra Tent House. Evidence was also led to the effect that electricity connection was also obtained by Sat Pal Bindra in the name of M/s Bindra Tent House. Despite all this, evidence having come on record, Hon'ble Supreme Court held that even though the father had retired from the business and the sons had been looking after the business, it can not be said that the father had divested himself of the legal right to be in possession .If the father has a right to displace the possession of the occupants, i.e. his sons, it can not be said that tenant had parted with the possession. 19- In United Bank of India (supra), the tenant bank inducted Trade Union into the premises for carrying on trade union activities. No monetary consideration was received by the bank from Trade Union. The bank retained its power to call upon the Trade Union to vacate premises at any time and the bank was maintaining the premises at its own expenses and also paying charges for electricity consumed by the Trade Union. It was held that the bank can not be held liable for eviction under Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956. 20- In view of these authoritative pronouncements, coupled with the fact that alleged sub tenant is none else but son of the tenant and even if he is carrying on the business in the suit premises, no cogent evident has come on record to establish that tenant has divested himself of (RCT Appeal No.100/2011) (Page 9 of 10) the control of the suit premises or that the premises are in exclusive possession of alleged sub-lettee. That being so, there is no infirmity in the impugned order passed by learned Additional Rent Controller which calls for interference. Therefore, the appeal is dismissed.
Copy of the order be sent to the trial Court alongwith record. Appeal file be consigned to record room.
Announced in open
court on 18.05.2012 (SUNITA GUPTA)
Rent Control Tribunal:
(RCT Appeal No.100/2011) (Page 10 of 10)